Archive for February, 2007
posted by Dan Filler
Jack Chin offers up an interesting new take on Jim Crow, arguing that the 14th and 15th Amendments were adopted at a time of African-American majority rule. From the abstract:
When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule.
He goes on to raise the spectre of a “majoritarian difficulty.” The piece is worth a look.
posted by Frank Pasquale
Google has been fighting a number of lawsuits challenging its placement of websites in search results. Eric Goldman covers the latest development in the saga, a big win for search engines in Langdon v. Google. Langdon claimed that Google had a duty to carry his ads, which charged US bureaucrats with corruption and China with committing atrocities. The district court dismissed the claim, along the lines Goldman predicted it would months ago:
Recall that from Miami Herald v. Tornillo, a statutory must-carry rule applied to newspapers violated the constitutional freedom of the press. Given the very specific justifications for tighter regulation of broadcasting, and that those bases have been held inapplicable to the Internet (see, e.g., Reno v. ACLU), I think (for these purposes) that search engines are more appropriately analogized to newspapers instead of broadcasters. Accordingly, I can’t see how any judge could constitutionally order “must carry” relief here.
I agree with Goldman that the claims in the lawsuit here are not particularly compelling. But neither is the newspaper analogy. The Miami Herald was merely one of thousands of US newspapers. But Google is, beyond a doubt, the dominant US & world search engine, and it is only growing in the US. Given the weakness of the analogy, isn’t the judge using a constitutional sledgehammer to knock out a vexatious fly? I worry that cases like Langdon are not merely going to end frivolous business tort claims, but also may serve as roadblocks to substantive regulation.
For some time, Google and other search engines have been trying to have it both ways when they confront internet complaints. For the purposes of copyright and defamation suits, they claim “We’re not a media company–we’re just a conduit. Don’t come to us if we highly rank a site you find objectionable–we’re just the infrastructure. Go to the source.” But when they hide behind the shield of Tornillo in these rankings cases, they openly claim to be just like a media outlet. They allege that any effort to regulate would violate their editorial discretion–a discretion they claim is well-nigh impossible in the case of eliminating defamatory or infringement-inducing websites from highly ranked results. (Although I have noted that they’re starting to buy some filters for YouTube.)
I’m willing to go along with search engine’s initial self-characterization–that they are merely the “pipes” or “infrastructure” arranging information, and not information-providers themselves. But if that is the case, it seems that the relevant precedent for Langdon is Turner Broadcasting. There, Justice Kennedy upheld must-carry provisions for a cable network as constitutional, reasoning that they “further important governmental interests” and “do not burden substantially more speech than necessary to further those interests.” 520 U.S. 180, 185. Carrying three mandatory channels was a small burden to the cable companies, and the burden was outweighed by the furthering of government interests in “(1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming.”
We can easily think of a host of parallel benefits from some basic groundrules of transparency (and perhaps must-carry rules) in the search engine context. And we should expect them to become a hotter issue, as U.S. politicians disgruntled with censorship of results in countries like China might require that Google disclose how sites are blocked on Google.cn. Moreover, even if we go beyond transparency and into must-carry, I’m not yet convinced of how burdensome such a requirement would be. Such requirements didn’t appear to hurt phonebooks, one recent example of an all-purpose index that some public utility commissions forced to carry all regional phone numbers.
I’m not saying that Langdon was right, or that Google had to sell him adspace in prime locations. All that I’m arguing is that the First Amendment should not prevent some future legislature from requiring search engines to disclose if they’ve deliberately deleted a website from their index. And if search engines truly want to be characterized as newspapers/media companies, they might have to pay a price by facing the same infringement liability such sites would face if they served up copyrighted content in an unauthorized manner.
Photo Credit: FoneBook Phriction.
posted by Daniel Solove
Chris Hoofnagle (Berkeley’s Samuelson Clinic) has posted on SSRN his paper, The Denialists’ Deck of Cards: An Illustrated Taxonomy of Rhetoric Used to Frustrate Consumer Protection Efforts. From the abstract:
The Denalists’ Deck of Cards is a humorous illustration of how libertarian policy groups use denialism. In this context, denialism is the use of rhetorical techniques and predictable tactics to erect barriers to debate and consideration of any type of reform, regardless of the facts. Giveupblog.com has identified five general tactics used by denialists: conspiracy, selectivity, the fake expert, impossible expectations, and metaphor.
The Denialists’ Deck of Cards builds upon this description by providing specific examples of advocacy techniques. The point of listing denialists’ arguments in this fashion is to show the rhetorical progression of groups that are not seeking a dialogue but rather an outcome. As such, this taxonomy is extremely cynical, but it is a reflection of and reaction to how poor the public policy debates in Washington have become.
The Deck is drawn upon my experience as a lawyer working on consumer protection in Washington, DC. Where possible, I have provided specific examples of denialism, but in many cases, these arguments are used only in closed negotiations. Some who read them find the examples humorous, while others find it troubling. But all who read the Washington Post will recognize these tactics; they are ubiquitous and quite effective.
This taxonomy provides a roadmap for consumer advocates to understand the resistance they will face with almost any form of consumer reform. I hope to expand it to include retorts to each argument in the future.
The paper is quite humorous and well-done — essential reading for any policy wonk.
posted by Daniel Solove
Professor Paul Caron has compiled a useful list of teaching fellowships for aspiring law professors.
posted by Kaimipono D. Wenger
This via Boing Boing:
The ultimate Bay Area Craigslist post: free Berkeley room for nursing mom who’ll share her breast-milk with seven people who’ve read a paper about the nutritional benefits thereof. They are all vegans. And they don’t want to take breast milk away from an actual baby.
We are offering a free room for a woman who is willing to provide breast milk for consumption to the household. We are an otherwise vegan house but have recently read A.O. Wilson’s study of the benefits of human breast milk to all human beings of any age. This is not sexual.
Um, yeah. I’m all for empowering nursing mothers (i.e., removing outdated laws or regulations that impair nursing in public). But this room-with-a-boob ad (which seems to have been later removed from Craigslist) certainly gives off weird vibes. I guess that as a society, we prefer that our commodified breasts either a little more discreet, or a whole lot more sexualized.
posted by Nate Oman
Last week I taught Justice Traynor’s opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co.. The opinion is a classic example – perhaps caricature would be a better word – of neoclassical contract law. The issue in the case was the admissibility of parole evidence to construe the terms of a written contract. The traditional rule is that such evidence is not admissible if the terms of the contract are clear on their face. Traynor ruled, however, that parole evidence was admissible so long as the language of the contract is “reasonably susceptible” to the interpretation offered by the party seeking to introduce the evidence. The holding in Pacific Gas is a major relaxation of the parole evidence rule, to be sure, but that is not why Traynor’s opinion makes it into virtually every published contracts case book. Rather, the case is there for the dicta.
Traynor begins his analysis of the question with an anthropological and philosophical aria attacking the very notion of plain meaning. Those who believe in it, we are informed, are the victims of a primitive faith in the totem power of words. (He drops a footnote at this point discussing Egyptian mythology.) Words, he tells us, do not have absolute referents, a fact that he takes to be fatal to the notion of plain meaning. You can have a lot of fun in class with this language. If one is inclined, I suppose that you can follow Traynor down the wooded path to the Golden Bough, or, if you are less anthropologically ambitious, talk about the meaning of meaning. You can also have a great deal of fun comparing the soaring linguistic theorizing of Traynor’s dicta with the much more modest holding in the case. If we really believe that the absence of absolute referents drives a stake through the primitive totem of plain meaning, how exactly do we engage in the inquiry about whether written terms are “reasonably susceptible” of a particular interpretation? I have a sneaking suspicion that it involves judges – perhaps even Justice Traynor – reading the words of the contract and deciding what they mean.
Pacific Gas is a godsend to contract professors, and I can’t help but think that Traynor really wrote the opinion for us. I am grateful. Still, at the risk of looking the gift horse in the mouth, I do wonder if it is good judging. My understanding is that contrary to the doomsayers (including Alex Kozinski) who insist that Pacific Gas is the end of the parole evidence rule in California, Golden State judges continue to exclude extrinsic evidence in the face of clear written terms. Pacific Gas didn’t result in revolution, simply confusion. Given the wild whipsawing between dicta, rule, and holding in the opinion, this is not really all that surprising. My judge always insisted, “We’re not writing for the ages here; we’re writing for the parties.” The craft-oriented modesty of this approach appeals to me. I also suspect that it generally makes for much better law. And yet, I can’t help but note that Traynor’s opinion has been intellectually influential precisely because it is so poorly written. Getting into the case books is another way of influencing the law, and I suspect that the results of Traynor’s thoughts on totem and absolute referents wouldn’t have had nearly the currency that they do had he written a law review article instead.
posted by Kaimipono D. Wenger
Update: Now, with more Pie-Chart-y goodness.
posted by Daniel Solove
Professor Cass Sunstein (U. Chicago Law School) has an op-ed in today’s Washington Post about Wikipedia and other collaborative technologies. I recently blogged about the extensive citation to Wikipedia in law review articles and judicial opinions, but I find this statistic that Sunstein provides to be quite amazing:
In the past year, Wikipedia, the online encyclopedia that “anyone can edit,” has been cited four times as often as the Encyclopedia Britannica in judicial opinions, and the number is rapidly growing.
He goes on to write about prediction markets:
But wikis are merely one way to assemble dispersed knowledge. The number of prediction markets has also climbed over the past decade. These markets aggregate information by inviting people to “bet” on future events — the outcome of elections, changes in gross domestic product, the likelihood of a natural disaster or an outbreak of avian flu.
In general, the results have proved stunningly accurate. For elections, market forecasts have consistently outperformed experts and even public opinion polls. (If you want to learn who is likely to win the Oscars, check out the Hollywood Stock Exchange at http://www.hsx.com.) Many companies, such as Google, Eli Lilly and Microsoft, have created internal prediction markets for product launches, office openings, sales levels and more. At Google, which has disclosed some of its data, the aggregation of dispersed information has yielded remarkably reliable forecasts.
Although recognizing some of the shortcomings of Wikipedia and other collaborative technologies such as prediction markets, Sunstein is generally quite optimistic:
But the track record of the new collaborations suggests that they have immense potential. In just a few years, Wikipedia has become the most influential encyclopedia in the world, consulted by judges as well as those who cannot afford to buy books. If the past is prologue, we’re seeing the tip of a very large iceberg.
While I agree that collaborative technologies are a very exciting and useful development, I wonder whether Sunstein is a bit too optimistic. Is Wikipedia really “the most influential encyclopedia in the world”? Are prediction markets “stunningly accurate”?
posted by Donald Braman
Kenworthey Bilz, an assistant professor of law at Northwestern, has been busy developing a series of empirical tests of expressive theories of criminal law. In particular, she focuses on Jean Hampton’s concern with status and punishment. I thought I’d preview it here as it promises to be a significant contribution to empirical studies of punishment generally.
Hampton, for those who aren’t already familiar with her work, argued that just as criminal acts express a disregard for victims, punishment could express a regard for the value of victims by condemning offenders. This is, in an important way, a public rather than private conception of punishment. The objective isn’t – or at least isn’t only – to make the offender suffer, but to do so in a way that certifies the relative status of the victim as equal or superior to the offender in the public’s mind. By giving expression to their relative stata in this way, punishment serves an important educational and socially integrative role.
Bilz evaluated this theory through a series of innovative experiments. Indeed, I think it’s safe to say that her work is the first to examine, experimentally, the distinctive effects of punishment and non-punishment on both victims and offenders — and as icing on the cake, she does so in a way that reveals differences in social meaning across context. She hasn’t yet published the findings, so all sorts of caveats apply. But with her permission I’d like to give you a sneak preview of them here. Feel free to send her comments if you want more details.
posted by Dave Hoffman
I’ve been busy working on edits for my recent paper, which attempts to present lots of data in relatively clear ways. I’ve gotten some great comments from readers. None more so than this one, in response to a proposed figure providing some descriptive statistics:
Pie charts are bad! They are ugly and provide the reader no visual assistance in comparing categories.
One of the prevailing orthodoxies of this forum – one to which I whole-heartedly subscribe – is that pie charts are bad and that the only thing worse than one pie chart is lots of them.
The thing I don’t get is why: pie charts seem to be a very common form of data presentation; and folks are accustomed to measuring the area of slices of pie, so the visuals convey important data. What’s wrong with a slice of pie? (And, more importantly, are dot plots really better?)
posted by Kaimipono D. Wenger
A Hollywood movie studio filed a lawsuit claiming gossip blogger Perez Hilton posted a stolen topless photograph of Jennifer Aniston on the Web. Universal City Studios Productions LLLP filed the suit Tuesday claiming the stolen image was posted on the perezhilton Internet site by Mario Lavandeira, aka Hilton. The picture was allegedly “misappropriated and illegally copied” during production or post-production of the 2006 romantic comedy hit “The Break-Up,” starring the actress and Vince Vaughn, the suit said. . . . The suit seeks an injunction barring further distribution of the picture and requests a court order “directing the U.S. Marshal to seize” the copyrighted material from the 28-year-old blogger.
Dan S. previously blogged about the last Jennifer Aniston nudity lawsuit, which involved allegations of breach of privacy by a paparazzi photographer. (For his excellent and very popular post, see here). The allegations in this new suit look a lot less complicated — they seem to be plain vanilla misappropriation. But as we know around here, a lawsuit involving Jennifer Aniston nude will always draw (lots of) reader attention.
posted by Dan Filler
Back when he was Alabama’s Attorney General, Bill Pryor used to complain that big (Northern) firms only lined up to represent capital defendants at the point of collateral challenges. Why, he’d ask, don’t they step up at the trial stage? A certain suspicion is present in this question, a suggestion that this decision is strategically designed to frustrate use of the death penalty. But as anyone experienced in criminal practice will tell you, it is easiest to prevent a death sentence at the trial stage – either by squeezing out a plea deal, winning at trial (really, almost impossible in capital cases, unless you roll the dice and give up any hope of showing forgiveness in the sentencing phase, should it occur), or “winning” life at the punishment hearing. (One caveat here: in Alabama, where judges override jury verdicts of life in order to further their own political ambitions, all the good lawyering in the world can lead to nothing. As a result, an Alabama capital defendant may actually do better on appeal than at trial. The fact that this is true shows the perversity of the Alabama override system.)
So why don’t these excellent, well-funded counsel take cases at trial? There are presumably a few reasons. One is that trials are harder and more expensive to handle when your office is 1000 miles away. A second is that firms may actually prefer that their junior associates get the experience of working on what (probably incorrectly) appear to be more law-based collateral challenges. (They also aren’t interested in giving up the large chunk of attorney time required to handle a trial.) But a third reason, I suspect, is that the lawyers in these firms just don’t feel up to the task of trying a capital case. They don’t think they have the proper background; they may even think it would be malpractice. It’s easy to picture a partner at Simpson, Thacher saying “I’ve never tried a criminal case in my life…let alone one in Alabama.”
It is one of the curiosities of capital work that the leaders in the field have successfully convinced many other good lawyers (and not just Big Law lawyers from out of state) that you shouldn’t take a capital case without a commitment of serious time and a strong background in criminal and capital practice. They’re right, of course. The problem is that when these good lawyers pass on capital cases, defendants in many jurisdictions end up with a mediocre or downright terrible lawyer. The attorneys who ultimately handle the case may have tried dozens of criminal matters, but they aren’t necessarily sophisticated or talented practitioners. They may never gave given a thought to the difference between guilt/innocence and the penalty phase. They may accept mediocre attorney/client relations that make it impossible to sell a young client on a plea of life without parole. And they may dedicate what seems to them a reasonable 30 or 40 hours to prepping the case.
When I first considered starting a capital defense clinic at Alabama, a friend who’d formerly worked at a Death Penalty Resource Center counseled me against it. He correctly believed that I was too overtaxed to dedicate the time such a clinic truly required. But I created a model that worked – reasonably well, though not perfectly – because it struck me that, in Alabama, in the year 2002 (and still today), perfection really can be the enemy of the good. I’m not sure I was right in setting up that clinic, but I hope that if nothing else, we trained a few lawyers to worry about exactly these questions.
posted by Scott Moss
[ I started writing this as a comment to Frank's post, but it got too long. ]
I’m tempted to reiterate my whole blog post mocking Judge Luttig’s salary complaint, but I’ll limit myself to an excerpt:
Can someone point me to the folk song about the guy who couldn’t afford college for his two young’uns because he earned only $3.4 million over 20 years as a high-level judge? … I do not have Luttig’s expenses, and I’m a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I’ll do the job for just $170,800, which means a $1,000 savings for the American people!
My serious point was to express doubt about the empirical assertion Justice Kennedy is now making: “I’m losing my best judges” because of low salaries. I just don’t buy it; even if there are scattered examples, I doubt that the White House can’t find a few dozen amazingly qualified nominees a year fromamong the million lawyers in the country.
Part of my skepticism is this: I may not believe judges’ self-reported reasons for leaving the judiciary. Yes, Luttig’s departure is a loss if we want the best and brightest on the bench. But consider his timing: he quit shortly after the second time President Bush passed him up for the Court in favor of two other white male appellate judges. By then, Luttig had to realize Bush wasn’t going to appoint him: (1) any third Bush nominee very likely would be a women or minority; and (2) Bush probably passed him over for a real reason: most likely, that Luttig is a “small-gov’t” conservative who once wrote an opinion that would have curtailed executive power whereas Alito and Roberts had a record of favoring broad executive and prosecutorial power — Bush’s primary goal with nominees, as evidenced by the nomination of Harriet Miers (who had no abortion record but a strong record of helping the White House seek broad presidential power).
This timing was reminiscent of Robert Bork’s departure from the bench a year after his Court nomination failed. Maybe this “I didn’t make it to the Supremes” story isn’t inconsistent with the “low salary” story — e.g., “if I’m not making it to the Court, I’ll cash out.” Even if so, does anyone think a raise from $171K to, say, $205K (a 20% jump, probably more than Kennedy hopes for) would’ve kept Luttig from going to Boeing once he gave up hopes of becoming a Justice?
There are two arguments for higher judicial salaries I might buy, the first being Frank’s point that we might get a more diverse judiciary with higher salaries, because we could attract those who became lawyers without family wealth and hold lower-paying jobs (legal aid, prosecution, etc.). But this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons? I’m dubious.
Second, maybe we need higher cost-of-living adjustments in particular cities with especially inflated salaries and housing costs. Justice Kennedy’s tale of former clerks making more than their judges may happen in NY and DC, but not in most places. E.g., according to the NALP directory, entry-level salaries in many states are about half of NY’s: e.g., Maine (Portland: $71-73K); Nebraska (Omaha: $77-80K); New Mexico (Albuquerque: $70-73K). (These are the first states I looked at, specifically avoiding states with <1 million like Idaho or Vermont.) Even in top-30-population cities like Denver and Milwaukee, former clerks who join big firms don’t out-earn their judges.
In short, Justice Kennedy’s factual premise about lawyer salaries doesn’t support the nationwide salary increase he seeks, just some tinkering with cost-of-living salary adjustments for a few big cities. I don’t know if that’s worth pounding the table before a Senate Committee.
posted by Frank Pasquale
Chief Justice Roberts raised eyebrows earlier this year by complaining that low federal judicial salaries threatened to create a “constitutional crisis.” Justice Kennedy has reiterated the chief’s view. The blogosphere is split on the issue, admitting that judges do a lot more for society than many of those paid much more….but also puzzled by the need to peg judicial salaries above, say, Congressional ones. Should we rally behind the Justices’ call to raise judicial salaries from current levels (which, at 160K, put them in 95th percentile of American wage-earners)? I think there’s an argument for that position, but it’s not the one the Justices are making.
The justices focus on comparisons between federal judges and high-paying coastal firms. In Kennedy’s words, “[s]omething is wrong when a judge’s law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before.” However, not many lawyers practice at those firms. The median lawyer makes 96K per year, and a federal judge’s salary of 160K is well above that (and well outpaces the median income of all households, about $46K).
On the other hand, given that “profits per partner at the nation’s 100 highest-grossing law firms in 2005 averaged $1.07 million,” judicial salaries might seem paltry in comparison. But is this the proper reference group? It strikes me that the SC’s perspective on matters financial can be unduly patrician. Consider this comment from the NYT on their view of “extreme punishment,” as evidenced by yesterday’s Philip Morris case:
The court in recent years has become increasingly activist when it comes to defending the rights of corporations by striking down punitive damage awards. . . . Unfortunately, the court has been far less activist when ordinary people seek protection or challenge their punishments. The ruling stands in particular contrast with the court’s 2003 decision that the Eighth Amendment’s ban on “cruel and unusual punishments” did not bar California, under its “three strikes” law, from sentencing a man to 50 years in prison for stealing $153.53 worth of videotapes.
Many supreme court justices have a net worth of over $1 million, and thus can afford housing outside of areas where they’d actually casually run into people who routinely run afoul of the justice system (or the relatives who may be devastated by their long imprisonment). The people on the “wrong side of the law” may be utter strangers to them, so it’s not surprising when an SC majority throws up its hands and looks the other way in cases like “3 strikes.” On the other hand, they know quite well how devastating unpredictable punitive damages judgments can be for a portfolio.
So do constrained judicial salaries somehow produce a more representative judiciary? It’s tempting to think so, especially since the overheated DC housing market could well force someone with a salary of, say, 160K (and few assets) to purchase a home in a neighborhood rife with urban problems (i.e., crumbling schools, crime, etc.). But I think it may have precisely the opposite effect, pushing would-be judges to insulate themselves from such “penury” by making as much as possible before ascending to the bench. So higher salaries may help ensure a bench more diverse in its class character, and less the province of “noblesse oblige.”
posted by Kaimipono D. Wenger
Anna Nicole Smith’s will is recently available online at various venues, such as CNN. The will, in interaction with the facts, raises a number of questions. It’s practically a real-life law exam. This post will discuss a few of the many issues raised by the will.
This discussion is limited in a number of important ways. For example, there are messy jurisdictional questions; there may be questions about the existence of other potential heirs (an interesting possibility, raised in this news article); it seems not outside the realm of possibility that a later will or codicil will surface. There are also a whole array of questions falling under the broad umbrella of undue influence or related impropriety. Conspiracy theorists are already suggesting that the lawyer, Howard Stern, orchestrated a complicated web of murder. Even less exotic and more mundane possibilities, like plain vanilla undue influence, could still drastically affect the distribution. Finally, there are big question marks relating to the value of the estate. The $80 million question is the litigation over the estate of Ms. Smith’s late husband. The ultimate value of her estate could vary greatly depending on how those issues are ultimately resolved.
But even setting aside those questions, the will still leaves a number of interesting issues. Questions that come out of the will itself include whether Anna Nicole Smith’s daughter will be treated as a pretermitted child, and the question of how to treat the lapsed bequest to Anna Nicole Smith’s son, Daniel. We can frame the query in a way that highlights these sub-issues. In fact, it makes quite a nice law-exam-style question.
“Anna executes a will in California in 2001. She leaves her entire estate to her son Daniel, to be held under various trust provisions. She also explicitly disinherits any other relatives, as well as any future spouses or children she might have. Her will contains no residuary clause. In 2006, Daniel dies suddenly, leaving no issue. Later in 2006, Anna’s daughter Dannielynn is born. In 2007, Anna dies. How is her estate distributed under California law?”
posted by Daniel Solove
I’m pleased to welcome to the blogosphere a new blog by my colleague, Professor Jonathan Siegel (George Washington University Law School). The blog is called Law Prof on the Loose. Today’s post is about a little known justice of the U.S. Supreme Court:
Today in Administrative Law I’m teaching the classic 1908 Supreme Court case of Londoner v. City and County of Denver. The opinion is written by Justice Moody.
Justice Moody? Who? Have you ever heard of him? I certainly hadn’t. His contemporary Justice Oliver Wendell Holmes is still a household name, but, even in the rarefied halls of legal academia, Justice Moody merits only a puzzled shrug.
Check out Jon’s blog for the rest of the post. Welcome to the blogosphere Jon!
posted by Dan Filler
One of the great pleasures of being part of Drexel Law’s start-up is hearing various librarian candidate job talks. The other day I attended a talk by a candidate for acquisitions librarian, and in the course of the presentation I came upon one of those “this is so obvious, why haven’t I thought about it before” moments. It was all about federated searches.
As any active consumer of academic libraries knows, a fast growing portion of the collection is now in digital format. There are e-books, digitized texts that can be viewed online from your desk. There are digitized government documents. And of course there are the digitized journals. Yet right now, despite the fact that significant portions of the overall collection are digitized (with the striking exception of monographs), we still follow the same search silos as before. Want to find an article? You have to find the right database to search. Want a book? Forget whole text search (except perhaps on Amazon or Google.) Search the card catalog. Government docs? I don’t know how you search them!
But as a library’s collection of digitized material grows, it will soon be possible conduct a single search that surveys the entire library collection. These federated searches will help prevent the all-too-familiar phenomenon of missing that key article or book – often from another discipline – which was exactly what you needed for your project. It will also make it far easier for law review authors to meet the tedious demand that every claim, no matter how small, be footnoted.
I look forward to a time when comprehensive research is easier. But these searches will have broader implications. Once digital journals are lumped together with hard copy journals for research purposes – something that has not happened in law, at least – it may cause many law schools to move their secondary journals into digital-only format. And a move to digital-only will make it cheaper for law schools to add new secondary journals (and thus offer more students a journal experience.) Of course, it will continue to be difficult or these journals to find quality content.
There may also be a temptation to extend the scope of these search engines, wrapping other internet material into the searched databases. If these searches include the entire web, perhaps via google, they may produce too much material to be useful. But perhaps librarians will now band together to create a sub-category of freely available web resources that might be tracked by these new search engines. This would be a perfect consortium project. I wonder if Wikipedia will make the cut?
posted by Paul Ohm
Law Professors who write about the Internet tend to develop facts through a combination of anecdote and secondary-source research, through which information about the conduct of computer users, the network’s structure and architecture, and the effects of regulation on innovation are intuited, developed through stories, or recounted from others’ research. Although I think a lot of legal writing about the Internet is very, very good, I’ve long yearned for more “primary source” analysis.
In other words, there is room and need for Internet law scholars who write code. Although legal scholars aren’t about to break fundamental new ground in computer science, the hidden truths of the Internet don’t run very deep, and some very simple code can elicit some important results. Also, there is a growing cadre of law professors with the skills needed to do this kind of research. I am talking about a new form of empirical legal scholarship, and empiricists should embrace the perl script and network connection as parts of their toolbox, just as they adopted the linear regression a few decades ago.
I plan to talk about this more in a subsequent post or two, but for now, let me give some examples of what I’m describing. Several legal scholars (or people closely associated with legal scholarship) are pointing the way for this new category of “empirical Internet legal studies”.
- Jonathan Zittrain and Ben Edelman, curious about the nature and extent of filtering in China and Saudi Arabia, wrote a series of scripts to “tickle” web proxies in those countries to analyze the amount of filtering that occurs.
- Edelman has continued to engage in a particularly applied form of Internet research, for example see his work on spyware and adware.
- Ed Felten—granted, a computer scientist not a law professor—and his graduate students at Princeton have investigated DRM and voting machines with a policy bent and a particular focus on applied, clear results. Although the level of technical sophistication found in these studies is unlikely to be duplicated in the legal academy soon, his methods and approaches are a model for what I’m describing.
- Journalist Kevin Poulsen created scripts that searched MySpace’s user accounts for names and zip codes that matched the DOJ’s National Sex Offender Registry database, and found more than 700 likely matches.
- Finally, security researchers have set up vulnerable computers as “honeypots” or “honeynets” on the Internet, to give them a vantage point from which to study hacker behavior.
What are other notable examples of EILS? Let’s keep with the grand Solovian tradition, and call this a Census. Is this sub-sub-discipline ready to take off, or should we mere lawyers leave the coding to the computer scientists?
posted by Dave Hoffman
Former Co-Op guest Rafael Pardo (Seattle) has generously shared with us a great law review submissions guide for the 2007 spring season. The document contains updated information on the submission policies, addresses, and timing preferences of forty journals, together with links that send you directly to their submission pages. When considered together with Tony Sebok’s guide at Prawfs, and Danielle Citron and Anthony Ciolli’s guides (also courtesy of Dan), the excuses for not submitting that piece you’ve got in draft are diminishing.
posted by Kaimipono D. Wenger
The list looks pretty sensible. A few excerpts:
DO implement a clear policy on employee blogs, especially those in which senior executives contribute. Chances are, a number of your employees already have a blog that prominently features their association with the business, and many are saying plenty of things (and sharing images) relating to the company. Some of that content may be innocuous; other types may be embarrassing or come back to haunt the company in litigation. Implementing and enforcing a clear policy that provides reasonable parameters for such postings can save you headaches down the road. . . .
DO consider, before creating a corporate blog, how the posted content will affect the company’s discovery and document-retention obligations. . . . DO be mindful of privacy and information security laws. Collecting personal information about individuals who post and/or visit the blog — from names and e-mail addresses to Web site cookies and URLs — must comply with [law].
DON’T terminate employees for posting inappropriate content to corporate blogs without considering the risk of wrongful termination claims, especially where the company does not have a consistent practice on how it treats employees who post content online. Employees may claim that the employer authorized the posting, and is now discriminating against them for exercising their right to organize.
A lot of the discussion is relatively common-sense — author maintenance and so forth. But the post also covers a wide range of the potential legal consequences of blogging — from securities law to labor and employment law to discovery. It’s eye-opening to go over the number of ways a blog could create some sort of legal question or responsibility. Law of the horse, indeed.