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Protecting The Rights Of African-American Majorities

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 Dan_Filler at 06:28 PM | Comments (1) | TrackBack

Is Google Like a Newpaper? Cable Network? Phonebook?

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 Frank_Pasquale at 12:19 PM | Comments (8) | TrackBack

A Guide to Lobbyist Arguments on Consumer Protection

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 at 11:56 AM | Comments (1) | TrackBack

List of Teaching Fellowships for Aspiring Law Professors

Professor Paul Caron has compiled a useful list of teaching fellowships for aspiring law professors.

Posted by Daniel Solove at 11:47 AM | Comments (0) | TrackBack

The (really weird) commodification of the female breast continues

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 Kaimipono at 01:47 PM | Comments (1) | TrackBack

The Power of Badly Written Judicial Opinions

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 oman at 10:42 PM | Comments (15) | TrackBack

A chart Two charts for Dave

Update: Now, with more Pie-Chart-y goodness.

Posted by Kaimipono at 04:12 PM | Comments (4) | TrackBack

Cass Sunstein on Wikipedia and Collaborative Technologies

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 Daniel Solove at 02:16 PM | Comments (2) | TrackBack

Testing the Expressive Theory of Punishment

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.

In one experiment, Bilz evaluates the way individuals recall losses that are the result of accident and intentional criminal acts. Overall, consistent with Hampton's theory, she finds that people tend to speak in different terms about the two, focusing predominantly on material harms resulting from accidents (saying things like "I lost items I paid for with my money.") and dignitary harms resulting from crimes (saying things like "I lost my social standing with my friends.").

In another experiment, she divided participants into two groups. Both groups were asked to rate the change in social standing of offenders and victims following a rape trial; the only difference between the groups was that while in one scenario the offenders were convicted of rape, in the other scenario the offenders pleaded to a lesser offense. The group exposed to the rape conviction scenario significantly increased their rating of the victims social status and decreased their ratings of the offender's social status. The group exposed to the lesser pleading scenario registered a non significant change in their assessment of the social status of either victim or offender in the opposite direction, indicating that, if it did anything at all, the relatively small punishment further injured the social standing of the victim and bolstered the social standing of the rapists.

And in yet another experiment, Bilz tested the idea that the perceived status of both an individual and a social group can be affected by punishment and non-punishment. In this experiment three groups were told to imagine that they were the victim of a criminal "hit and run" car accident. In one group, after a sincere and thorough search, the offender was not found. In a second group the offender was found and punished. And in a third group, the offender was found but not punished. To test in-group/out-group effects, half the participants in each scenario were told that the trial of the perpetrator took place in a foreign country and in the other half that it occurred in the U.S. As expected, the group that was asked to imagine the trial occurring in the US felt that the outcome (punishment or nonpunishment) reflected significantly on their own individual standing and those asked to imagine the trial occurring in another country felt that the outcome reflected significantly on the standing of their social group (Americans).

I think the findings are fascinating and am especially intrigued by the link between punishment and group status. Bilz's findings hint at the differential effects that punishment might have where, as is the case in many trials in the United States, offenders are tried and convicted by judges and juries that are, on average, wealthier and whiter than those being tried. I would love to see what the relative effects on victim and community/group status are in those kinds of cases as well.

And it is precisely why I like this work so much: It allows us to move beyond universal conceptions of crime and punishment to more nuanced conceptions of punishment that incorporate variations in social meaning across context and community. I'm curious to hear about other research you might have heard of along these lines.

Posted by Donald_Braman at 12:37 PM | Comments (4) | TrackBack

Pie Charts: The Prime Evil

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.

I had no idea if this was a generally accepted view among experts in the visual display of quantitative information. Extensive research suggested that it was:

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 hoffman at 12:15 PM | Comments (7) | TrackBack

More litigation about - you guessed it - Jennifer Aniston topless pictures

The latest lawsuit is on CNN:

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 Kaimipono at 10:24 PM | Comments (0) | TrackBack

Good Intentions, Bad Outcomes For Capital Defendants

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 Dan_Filler at 10:14 AM | Comments (5) | TrackBack

A Simple Fix for Judges' Salaries: Better Regional Cost-of-Living Adjustment

[ 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 Scott_Moss at 10:28 AM | Comments (22) | TrackBack

Who Wants to be a Millionaire?

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 Frank_Pasquale at 07:14 AM | Comments (3) | TrackBack

Anna Nicole Smith's will

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?"

Is Dannielynn a pretermitted child?

The answer here is "Yes, but."

Yes, she is a pretermitted child. That is, she is a child born after the execution of the instrument. Such children are often able to inherit under the California statute, taking an intestate share:

21620. Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent's testamentary instruments, the omitted child shall receive a share in the decedent's estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

However, exceptions under the California statute include explicit disinheritance:

21621. A child shall not receive a share of the estate under Section 21620 if any of the following is established: (a) The decedent's failure to provide for the child in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments.

Given that statutory exception, and the explicit disinheritance on the face of the will, it is clear. Dannielynn does not inherit through the pretermitted child statute.

Does this mean that she is unable to inherit? Not exactly. She cannot take through the will, but she may still be able to claim an intestate share of portions of the estate that pass outside the will.

How is the lapsed gift to Daniel treated?

Good question.

First of all, as a general matter, the deceased do not inherit.

21109. (a) A transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the instrument. (b) If it cannot be determined by clear and convincing evidence that the transferee survived until a future time required by the instrument, it is deemed that the transferee did not survive until the required future time.

Okay, so what happens to a lapsed gift? Here, the statute diverges into two branches. If the deceased transferee left issue, then the issue take. If not, then the gift passes to any contingent takers; if there are no contingent takers, it passes to the residuary taker; if there is no residuary taker, it falls into the estate.

21110. (a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240. . . . (b) The issue of a deceased transferee do not take in the transferee's place if the instrument expresses a contrary intention or a substitute disposition. . . .

21111. Except as provided in subdivision (b) and subject to Section 21110, if a transfer fails for any reason, the property is transferred as follows:
(1) If the transferring instrument provides for an alternative disposition in the event the transfer fails, the property is transferred according to the terms of the instrument.
(2) If the transferring instrument does not provide for an alternative disposition but does provide for the transfer of a residue, the property becomes a part of the residue transferred under the instrument.
(3) If the transferring instrument does not provide for an alternative disposition and does not provide for the transfer of a residue, or if the transfer is itself a residuary gift, the property is transferred to the decedent's estate. . . .

The lapsed gift would go first to Daniel's issue, but he has none. Next, it would go to the contingent taker, but there is none. Next, it would go to the residuary taker, but again, there is none.

So the most likely answer is, it falls into the estate. Nobody takes under the will, and the entire estate passes in intestacy. From there, we turn to the intestate statute (6401 and 6402). With no surviving spouse, the entire estate passes to the deceased's children. Which is, in this case, Dannielynn. (And any other children who may be discovered.) So while she doesn't take under the will (because of the exclusion clause), she stands to take in intestacy. Also, because the property passes in intestacy rather than under the will, the various trust provisions in the will (intended to keep Daniel from receiving all of the property at once) will be ineffective.

Posted by Kaimipono at 02:35 PM | Comments (11) | TrackBack

Welcome to the Blogosphere: Law Prof on the Loose

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 Daniel Solove at 01:31 PM | Comments (0) | TrackBack

Federated Library Searches: A New World Order, Literally

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 Dan_Filler at 11:42 AM | Comments (3) | TrackBack

Law Profs Who Code

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 Paul_Ohm at 09:28 AM | Comments (11) | TrackBack

Law Review Submission Guide, 2007

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 hoffman at 09:28 AM | Comments (0) | TrackBack

The do's and don'ts of company blogging, at law.com

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.

Posted by Kaimipono at 11:09 PM | Comments (1) | TrackBack

The Big Law Firm Raises: Much Ado About Nothing?

Is it me, or is the frenzy of "wow!" coverage about the big law firms' salary increases a bit overblown? My memory of law firm salaries goes back to 1996, when the New York standard was $80,000. Now, in 2007, it's $160,000 -- exactly double over 11 years, which means that over time, big law firm salaries have increased 6.5% annually. That's a decent rate of increase -- it beats the 3-4% rate of wage growth for U.S. wages generally -- but it's not absurdly high.

Yes, $145K to $160K is a jump of just over 10% -- but big firms tend to follow (and precede) big raises like this with a few years of no raises. That's how the average raise is just 6.5% despite occasional jumps like this, or like the not-long-ago $125 to $145 raise; as law.com (one of the few sources to get it right) explains:

[The new] increase will surprise many in the legal community because it comes so soon after the new $145,000 standard was set ... last February. At that time, the starting salary had been $125,000 in New York for over five years.

I'm surprised that this coverage is so shallow and unperceptive; I think it's the result of two problems. First is the standard media bias -- not left/right bias, but "Big Story" bias. Reporting a huge, sudden pay increase is news. But reporting that law firms raised their pay, pursuant to their long-term practice of alternating substantial raises and stagnation ... yawn, I even got bored writing that sentence. That's why we get reporting like the following:

Second, I think law students feed into the frenzy because their perspective only goes back one or two years. They don't see the repeated cycle -- stagnation/jump/stagnation -- just one "jump", which makes that raise look special, unique, and huge.

I don't have any major social comment here; I just wanted to deflate the "WOW" bubble I've been hearing from, among others, some of my own students....

Posted by Scott_Moss at 09:32 PM | Comments (11) | TrackBack

Balkin on Blogs

The Yale Law Report has a nice interview with Jack Balkin on the new role of blogs in legal scholarship:

Blogging changes the relationship between law professors and their audiences because professors can reach more people. It changes the relationship between law professors and journalists because law professors don’t need journalists to get their ideas out to the broader public; conversely, blogging makes it easier for journalists to find the right experts to interview. It changes the timing and pace of legal scholarship because law professors can talk about cases the day they come down, driving the discussion forward in a very short time rather than through a series of law review articles that may take years to appear. Just as the Internet collapses the news cycle, it also collapses the publication and discussion cycle. It produces a type of legal writing that is more journalistic, more personal, and more driven by current events.

Reminds me a bit of the view of the more forward-thinking teacher in The History Boys. I tend to agree, but I think any blogger who presumes to be an expert has to have some "street cred" on the topic before they get taken seriously....and traditional legal scholarship is a good way to earn that "expertise capital" (which can then be "spent" on blogging). On the other hand, the wonders of hyperlinking can make a good blog post more persuasive than some scholarship: bloggers "cite to supporting information or authorities by linking to them, so that you can see the evidence for yourself." No more waiting weeks for the interlibrary loan to deliver you the critical document in opponents' argument; you can pick it apart yourself and see whether it really supports their ideas.

Balkin also focuses on some egalitarian aspects of the new media; for example,

The blogosphere allows people to advertise their expertise by showing what they can do; they put their views out there for everyone to see. . . . This not only makes it easier for journalists to find expert opinion, but it allows expert opinion to route around traditional media gatekeepers and reach the public directly. Several sites have sprung up that help people do this. Memeorandum collects links to major news stories and matches them with links to prominent blogs that cover those stories and comment on them.

And finally, an interesting set of predictions for the future:

In the legal academy, you will get an increasing integration between blogs and legal scholarship, between blogs and what you read in law reviews. As I mentioned, law reviews are already experimenting with blogs as adjuncts to their online presence. There will be more connections between blogs and SSRN and other online publications. More and more legal scholarship will occur in blog formats, or link to blogs, or cite to blogs, and the distinctions between blogging and other forms of legal scholarship will begin to blur, even if some important differences remain. As this happens, you’ll see the public persona of law professors migrate to their blogs.

Though I'm usually allergic to meta-culture (blogging on blogging, movies about filmmakers, etc), this interview is well worth reading.

Posted by Frank_Pasquale at 03:48 PM | Comments (5) | TrackBack

The New RFID Chip

Hitachi has developed a new RFID chip, one that is much smaller than existing chips. This new chip is not that much bigger than the size of a grain of sand.

RFID stands for "radio frequency identification." RFID chips are tiny computer chips embedded into products and animals (and sometimes people) to identify and track them. The chips send a signal that can be read by a decoder.

RFID chips have increasingly become cheaper and smaller, but this new development is rather significant. These new chips are small enough to secretly implant into nearly anything. The potential future uses of the technology are quite vast, and they obviously raise many privacy issues. One of the primary dangers is that one day RFID tags will be used to track people’s movements like a GPS homing device.

When it comes to businesses or people who might use RFID to track others, there isn't much that current law has to say about what they can or cannot do. When it comes to law enforcement officials, the Supreme Court has held that the Fourth Amendment does not apply when an electronic device tracks a person’s movement in public. In United States v. Knotts, 460 U.S. 276 (1983), a beeper was attached to an item placed in a person’s car, and the police tracked the car’s movements. The Supreme Court held that it was not a Fourth Amendment violation. However, the Court has held that such tracking within the home is covered by the Fourth Amendment. United States v. Karo, 468 U.S. 705 (1984). Thus, in many places outside the home, a person might have no reasonable expectation of privacy according to the Court, and hence no Fourth Amendment protection against location tracking.

Some of the primary limitations on RFID have been size and detection distance. Size appears to no longer be much of an limitation anymore. As it becomes possible to detect RFID chips at greater distances, I believe they'll increasingly be used to track people. Despite what appears to be an increasingly likely future possibility, the law doesn't appear quite ready to address the privacy implications of RFID.

Hat tip: BoingBoing

Related Post: The RFID Tag You Carry With You (July, 2005)

Posted by Daniel Solove at 04:22 PM | Comments (3) | TrackBack

Best and Worst Internet Laws

[Preface: I've already overstayed my guest visit, but before I go, I want to say thanks to the Concurring Opinions team for the opportunity to blog here, and thanks to all of you for the great comments and stimulating dialogue. A complete index of my guest blog posts. Meanwhile, I'll keep blogging on technology and marketing law at my main blog and on all other topics at my personal blog. Hope to see you there!]

Over the past dozen years, the lure of regulating the Internet has proven irresistible to legislators. For example, in the 109th Congress, almost 1,100 introduced bills referenced the word “Internet.” This legislative activity doesn’t always come to fruition. Still, in total, hundreds of Internet laws have been passed by Congress and the states. This body of work is now large enough that we can identify some winners and losers. So in the spirit of good fun, I offer an opinionated list of my personal votes for the best and worst Internet statutes in the United States.

[Keep reading for the list]

Best Internet Laws

With my libertarian leanings, it should not be surprising that my list of good Internet laws is both brief and skewed towards laws that minimized the scope of Internet regulation.

#2: Internet Tax Freedom Act

Many people mistakenly think this law eliminated sales tax for purchases over the Internet. It didn't (if you don't pay sales tax, you owe use taxes on those purchases). Instead, the law placed a temporary moratorium on states enacting Internet access taxes or e-commerce-specific taxes. By freezing new taxes, the law forestalled a tax frenzy during the dot com boom. The current moratorium expires in November, but Congress is proposing to extend the law permanently (see the Permanent Internet Tax Freedom Act of 2007, S.156 & H.R. 743). To which, I say: amen!

#1: 47 USC 230

The law was enacted in 1996 (as part of the Communications Decency Act, discussed below) during the heyday of the cyberspace exceptionalism movement--about the same time as Barlow’s Declaration of Independence and Johnson/Post’s Internet self-governance article. Indeed, this law is one of the most conspicuous examples of setting different rules for physical space and cyberspace. In this case, the law provides websites and other intermediaries a near-absolute immunization from liability for their users’ content—even if offline publishers would be liable for publishing the exact same user content in dead trees.

It’s hard to overstate the importance of this law to the Internet's evolution. Without this law, all Internet content probably would be subject to a notice-and-takedown regime like we have for copyright law (see discussion about the DMCA Online Safe Harbors below). If websites had to remove user content upon notice to avoid liability, they would act conservatively, quickly pulling down complained-about content without much fuss. So, any company unhappy with negative consumer comments could simply contact the web host, claim that the comments were defamatory (making the web host potentially liable for the content), and expect the web host to scramble to take down the user’s comment.

But in this takedown melee, only negative remarks would be targeted (there would be no legal grounds—or reason—to target positive comments). Thus, notice-and-takedown rules would result in “lopsided” databases where only positive opinions/commentary would remain, but many negative comments could be quickly excised. This would ruin the ability of the consumer opinion sites (e.g., eBay’s feedback forum, Amazon product reviews) to hold people and companies accountable for their choices. Indeed, by undermining the credibility of Internet content generally, a notice-and-takedown scheme could diminish the Internet’s vitality as a mainstream information resource.

47 USC 230 eliminates the notice-and-takedown option for people and companies trying to escape accountability. As a result, 47 USC 230 is a big part of the reason why the Internet has been such a massive success.

Effective but Questionable Internet Laws

Two additional laws are noteworthy for substantially accomplishing their intended goals, even though I can’t classify them as “good” because of their deficient policy rationales.

#2: No Electronic Theft Act (NET Act)

In 1997, Congress changed the basic paradigm for criminal copyright infringement. Previously, the law required that defendants had to infringe for the money. After the NET Act, infringers may be criminal even if their infringement was non-commercial.

The NET Act specifically targeted warez traders, a group of hobbyist infringers who aggregate and disseminate copyrighted works as trophies—by finding and publicly presenting a hard-to-get copyrighted work, the warez trader demonstrates his/her prowess as a trader and earns recognition from the community. Warez traders generally subscribe to the “information wants to be free” philosophy, so they never exchange copyrighted works for the money, but their trading can have adverse consequences for copyright owners.

There are many reasons why the NET Act is lousy policy, most importantly because it will not change warez traders’ behavior. Yet, it has given the DOJ an effective tool to nail warez traders, and a couple hundred warez traders have been busted using the law.

#1: Anti-Cybersquatting Consumer Protection Act

The 1990s saw a frenzy of domain name registrations, often involving the registration of domain names containing well-known trademarks by someone other than the trademark owner (a process called “cybersquatting”). Courts struggled to apply trademark law to this behavior, so trademark owners appealed to Congress for help. Congress initially hoped that ICANN would promulgate its own anti-cybersquatting administrative regulations (which ultimately became the UDRP). But ICANN took too long, and an impatient Congress enacted the ACPA.

The ACPA targeted cybersquatting, and in that respect the law has worked well. The classic 1990s cybersquatting “land-grab” registrations of [trademarkowner].[tld] have effectively dried up, and the few cases where a true cybersquatter has gone to court to defend against an ACPA claim generally have resulted in resounding victories for the trademark owner.

A silver lining of the ACPA: it contains an immunization of domain name registrars and registries that completely eliminated them as the targets of trademark owners. Prior to ACPA, domain name registrars (especially Network Solutions, the monopoly .com registrar for most of that time) had been sued repeatedly. Now, plaintiffs don't even think about it.

However, the ACPA isn’t all good news. From a defense perspective, the ACPA has emerged as a tool to attack gripers and other critics. From a trademark owner’s perspective, the ACPA hasn’t curbed domain name parking, domain tasting and other AdSense-fueled sites all using trademarks or typographical versions of them. So no one is really happy with the law. Nevertheless, as a point solution to the cybersquatting problem, I think ACPA is fairly characterized as a solid success.

Worst Internet Laws

I want a little credit for finding 4 laws that I could say something good about. It wasn't easy. In contrast, the list of bad laws is much longer, so I’ve limited myself to 10.

What makes a law “bad”? Unfortunately, there are many routes to ignominy, and mere legislative cluelessness isn’t sufficient. Some common themes: poor/ambiguous drafting, unintended consequences, justification bait-and-switch (publicly declaring that the law was designed to do X, when it was never likely to do so), and attempts to legislatively manufacture markets or change consumer behavior.

The dishonor roll:

#10: E-Sign

E-Sign generally says that online contracts won’t be denied enforcement simply because they are in electronic form rather than on paper. Superficially, this sounds positive because it stops courts from underenforcing electronic contracts or engaging in funky cyberspace exceptionalism. The problem? This law was completely unnecessary, as many states had already enacted the Uniform Electronic Transactions Act (UETA) before Congress passed the substantially identical E-Sign. Worse, E-Sign has a partial preemption clause that makes it difficult/impossible to figure out what state laws survived it. So E-Sign is a prime example of how Congress cannot resist the lure of Internet regulation—even if it adds no value (or even subtracts value)in the process.

#9: DMCA Online Safe Harbors

Another law that looks good on the surface, the law purports to provide safe harbors to protect online intermediaries from copyright infringement caused by other people. However, this law has at least two major flaws. First, it sets up a notice-and-takedown procedure which has led to significant abuse.

Second, and perhaps more importantly, the law only governs late 1990s technologies. It doesn’t contemplate P2P file sharing and other decentralized forms of communications. This technological dependency makes the safe harbor increasingly irrelevant as technology evolves. As a stark example, consider that the online safe harbors didn't get mentioned--not a single reference!--in the most important online secondary infringement case to date, the