Archive for June, 2007
When the Roberts Court Turns Into the Kennedy Court: End-of-Term Thoughts
posted by Mike O'Shea
By my watch it’s fifty-five hours since the final decisions of the Supreme Court’s October 2006 Term, and it already feels late to be weighing in. Some clichés are important enough to repeat: the pace of analysis, spin, and critical consensus is radically different from what was possible even ten years ago. As one of my former philosophy profs (a Heidegger fan) observed, the Internet is an ontological change.
What kind of Court do we have? Start with Andrew Siegel’s excellent “Meet the Roberts Court” at PrawfsBlawg (written before the school cases came down). Then modify it with Lyle Denniston’s “The Impact of Fervent Dissent,” (written after the school cases). The result, I think, is the best current working model of the Supreme Court.
In the general run of cases, it is the Roberts Court. As Prof. Siegel suggests, the addition of Justice Alito to form a five-Justice working majority has put the “Reagan Justice Department … firmly in control,” limiting and distinguishing Warren and Burger-era precedents. Justice Kennedy is still the swing vote in these cases, but he seems to treat them as “normal science” (to use a Kuhnian distinction that I find oddly helpful re: Kennedy). He will ordinarily agree with the Chief Justice and Justice Alito, or stake out a position in conventional legal terms that comes close to theirs. This is very significant, because the cases in this category are not merely “small” cases — they encompass some of the most important things the Supreme Court does. Enforcing habeas deadlines, refusing to extend the Establishment Clause standing exception, adopting relatively pro-business interpretations of statutes such as Title VII. It adds up. But these cases fall below the threshold of drawing widespread attention from the non-lawyer media and the public. They are not lead stories on CNN.
In the really big cases — the CNN cases — it’s the Kennedy Court.
June 30, 2007 at 5:31 pm
Posted in: Supreme Court
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Total Transparency: Toward Integrity or Artifice?
posted by Frank Pasquale
In an extraordinary paper (and talk) on social networking, danah boyd brings up the following anecdote to explain how publicity can modify self-presentation:
In the early 1960s, Stokely Carmichael regularly addressed segregated black and white audiences about the values of Black Power. Depending on his audience, he used very different rhetorical styles. As his popularity grew, he began to attract media attention and was invited to speak on TV and radio. Unfortunately, this was more of a curse than a blessing because the audiences he would reach through these mediums included both black and white communities. With no way to reconcile the two different rhetorical styles, he had to choose. In choosing to maintain his roots in front of white listeners, Carmichael permanently alienated white society from the messages of Black Power.
Glenn Reynolds notes a similar dynamic on the campaign trail:
There’s this weird paradox, in that the more transparent you become, the less spontaneous you can be. For example, you had these stories of people like JFK and LBJ on a campaign airplane, shooting the bull off the record with reporters and saying all kinds of stuff that they would never say now. But there’s no such thing as off the record anymore.
I don’t have much analysis, but I think there’s one other dynamic that may come into play–the gradual acceptance by the public of gaffes and miscues as the pressures of perpetually being on stage become clear. The media has gorged on such “pseudo-events” for too long. Coverage of real policy differences, rather than slips of the tongue, would be refreshing.
June 30, 2007 at 2:55 pm
Posted in: Culture, Politics
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The Admin Law Game
posted by Frank Pasquale
There’s a new kind of computer gaming being developed, and “fun” isn’t exactly the point:
[Games] created by Bogost’s development studio, Persuasive Games, invite us to be ruthlessly greedy, helplessly incompetent, and breathtakingly rude. The goal of Airport Security, for example, is to relieve infuriated passengers of prohibited items in accordance with continuously changing carry-on rules. In Bacteria Salad, players grow veggies for profit and try to avoid poisoning too many people. And in last year’s Disaffected!, we assume the role of a Kinko’s employee struggling to deliver print orders as lazy coworkers shuffle papers into the wrong stacks.
I wonder if they modeled the airport game on Dan’s action figures? Less bleak scenarios are also in the works.
These innovations remind me of the “game-like” aspects of administrative law: how do you navigate a labyrinthine agency to advance your client’s interests? The “game design” in Bacteria Salad has to include classic modalities in influencing human behavior: markets, common law, regulation, or norms. As Yochai Benkler notes, games themselves are also creating social relations: for the designer, “the interesting questions are, which approach will better foster creative autonomy, and create a more effective social network.”
The recent Washington Post stories on Dick Cheney’s influence on sub-cabinet level appointees also reminded me of “god mode” in games. You may think the rules of a given agency are set–and legally, they may well be. But the political aspect of administrative law means that an executive branch higher-up can get a lot done outside normal channels. Consider the case of Klamath river fish:
Law and science seemed to be on the side of the fish. Then the vice president stepped in. First Cheney looked for a way around the [Engdangered Species Act], aides said. Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers. Because of Cheney’s intervention, the government reversed itself and let the water flow in time to save the 2002 growing season, declaring that there was no threat to the fish. What followed was the largest fish kill the West had ever seen, with tens of thousands of salmon rotting on the banks of the Klamath River.
The story of admin is often the story of how politics, law, and science collide. The unpredictability of these “rock, scissors, paper” conflicts makes the subject matter all the more game-like.
June 29, 2007 at 12:29 pm
Posted in: Administrative Law, Economic Analysis of Law, Environmental Law, Intellectual Property
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Fallon & Meltzer on the Detainee Cases
posted by Brannon Denning
I wanted to highlight this article by Richard Fallon and Daniel Meltzer, which systematically goes through all of the issues related to habeas corpus, due process, and the detainee cases. It is a marvelous article: clear, brief (considering the issues), and thorough. Further, while the authors have definite opinions about the correct outcomes of various issues, they acknowledge that the issues are difficult and that reasonable minds can differ. This is a welcome change from some scholarship (on this topic in particular) that assumes those who disagree are fools or knaves. If you read only one article about the detainees, read this one.
June 29, 2007 at 8:58 am
Posted in: Uncategorized
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When Wikipedia Knows Something Too Soon
posted by Daniel Solove
One of the virtues of the online encyclopedia Wikipedia is that it can reflect new information very quickly after it becomes known. But there’s a rather odd development in the case of wrestler Chris Benoit’s murder of his family and suicide. From the AP:
Investigators are looking into who altered pro wrestler Chris Benoit’s Wikipedia entry to mention his wife’s death hours before authorities discovered the bodies of the couple and their 7-year-old son.
Benoit’s Wikipedia entry was altered early Monday to say that the wrestler had missed a match two days earlier because of his wife’s death.
A Wikipedia official, Cary Bass, said Thursday that the entry was made by someone using an Internet protocol address registered in Stamford, Connecticut, where World Wrestling Entertainment is based.
An IP address, a unique series of numbers carried by every machine connected to the Internet, does not necessarily have to be broadcast from where it is registered. The bodies were found in Benoit’s home in suburban Atlanta, and it’s not known where the posting was sent from, Bass said. . . .
Benoit’s page on Wikipedia, a reference site that allows users to add and edit information, was updated at 12:01 a.m. Monday, about 14 hours before authorities say the bodies were found. The reason he missed a match Saturday night was “stemming from the death of his wife Nancy,” it said.
June 28, 2007 at 8:04 pm
Posted in: Wiki
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Sicko, Soundbites, and Reform v. Revolution
posted by Frank Pasquale
Michael Moore’s film Sicko highlights the basic injustices of the American health care system:
1) tens of millions of people lack insurance
2) you can easily get bankrupted by illness even if you have good insurance
3) you can end up in a game of insurance company “chutes and ladders” if you need expensive treatment
4) France spends less, and gets better results, and has more satisfied patients.
Sadly, Moore goes “over the top” towards the end, viewing Cuba through red-colored glasses. And he ignores how some of the pharmaceutical innovation enjoyed by people of all countries is funded by the U.S. But I am glad someone is getting us to think about comparative health policy.
As David Hyman notes, this is a war of anecdotes. The creators of Harry and Louise should have known that some day someone would be rebutting them with stories of preventable infant deaths, HMO excesses, and patient-dumping. It’s only fair…but leaves me with a few regrets.
Having just attended a conference on the future of Medicaid, I’m saddened by the fact that discourse on health care is probably going to focus on the extremes: Moore vs. the dead-enders at Cato who can’t even get behind the Romneycare initiative Heritage backed. I disagree with Moore’s assumption that nothing less than social revolution can bring health care for all to America. Good people in Massachusetts, California, Maryland, Pennsylvania, and many other states are addressing the problem of the uninsured. Newt Gingrich has some excellent ideas, and even the market-loving doyenne of consumer-directed health care believes Swiss style universal coverage is appropriate for the US.
My only plea to those who would trash the film: before you do, please read Tim Jost’s essay on “Our Broken Health Care System.” He’s thought about these problems for decades, has an encyclopedic knowledge of comparative health systems, and is genuinely fair-minded.
June 28, 2007 at 11:47 am
Posted in: Health Law
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Pearl of Great Price: Now You’re Cooking with IP!
posted by Frank Pasquale
If you’re planning on opening a seafood restaurant soon, watch out for Rebecca Charles, owner of Pearl’s Oyster Bar. She’s suing rival Ed’s Lobster Bar for copying
“each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.
A packet of oyster crackers at a seafood restaurant? What a creative genius!
Seriously, White has some rights based on Two Pesos v. Taco Cabana, a decision that recognized that “trade dress which is inherently distinctive is protectable under [federal law] without a showing that it has acquired secondary meaning”–i.e., that if the look of a restaurant is distinctive, it can sue others for copying the look even if no one particularly associates the look with its originator.
It looks like White is a veteran of more than one restaurant rivalry:
I listened as the regulars [at Pearl Oyster Bar] who stole my seat begged the chef to let them eat at Mary’s Fish Camp, which is owned by her former girlfriend. When they split, one kept Pearl, and the other, in one of the great defiant acts of New York restaurant life, opened a restaurant with nearly the same menu just blocks away.
I suppose revenge is a dish best served cold.
The one claim that the NYT article mentions that I think may be a loser is White’s complaint that Ed’s copied her Caesar salad.
She and her lawyers claim [Ed's] is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons. She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. . . . And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars. “When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted.
Seems to me like that Caesar salad would be pretty easy to reverse engineer–and reverse engineering has long been a way to lawfully acquire the know-how behind trade secrets. Moreover, it sounds like this idea is not exactly a secret–other folks may well have “extracted it” from the same source.
My hope in this area, as in so many others, is that we can learn from the French. By and large, they don’t use law to punish culinary copyists, they use norms. As von Hippel and Fauchart show, “the existence of norms-based IP systems means that the usage of information that is freely accessible and not legally protected may be nonetheless restricted to the benefit of innovators.” Magnifique!
Photo Credit: Monceau/Flickr. Will Charles pay royalties to this New Orleans oyster bar if it turns out to have opened before hers?
UPDATE: Mike Madison strikes an appropriately jaded note.
June 27, 2007 at 9:24 am
Posted in: Economic Analysis of Law, Food, Intellectual Property, Privacy (Gossip & Shaming), Technology
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RIAA’s Turn to Be a Defendant
posted by Frank Pasquale
Matthew Sag has convincingly argued that RIAA’s litigation war against downloaders is rational for the industry: it’s basically self-financing, as just about every defendant is too terrified of massive statutory damages to put up a fight. But the record industry’s declining fortunes may make its court victories Pyrrhic.
Moreover, a scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. For example, one litigant has found a creative way of subjecting RIAA’s tactics to public scrutiny:
Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.
I’m still waiting for someone to bring the antitrust lawsuit that was forestalled by Bertelsmann’s purchase of Napster a few years ago. As Napster-slaying Judge Patel said of the RIAA’s distribution strategy then, “These ventures look bad, smell bad and sound bad” from an antitrust perspective.
Of course, given the lassitude of federal authorities, the antitrust case will be hard to make. But I look forward to more privacy challenges. As Sonia Katyal has argued,
recent developments in copyright law. . . have invited intellectual property owners to create extrajudicial systems of monitoring and enforcement that detect, deter, and control acts of consumer infringement. As a result, . . . intellectual property rights have been fundamentally altered—from a defensive shield into an offensively oriented type of weapon that can be used by intellectual property creators to record the activities of their consumers, and also to enforce particular standards of use and expression. . . .
If agencies fail to police these tactics, perhaps only individuals can fight for themselves. But as Bruce Scheier asks, why doesn’t the US have a privacy commissioner?
Hat Tip: BoingBoing.
June 26, 2007 at 10:59 pm
Posted in: Anonymity, Antitrust, Intellectual Property, Law and Inequality, Legal Theory, Media Law, Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance)
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Are Alternative Law School Rankings Any Better than US News?
posted by Daniel Solove
The WSJ has an article on alternative law school rankings to the infamous US News rankings. According to the article: “In the last two years, at least a dozen upstart Web sites, academic papers and blogs have stepped in with surveys of their own to feed the hunger for information on everything from the quality of the faculty to what a school’s diploma might be worth to future employers.” It has this chart of some alternative rankings of law schools:
In my opinion, all of these rankings have serious flaws.
US News — The reputation surveys are only given to deans and just one or two faculty members (a very unrepresentative sample of faculty). The reputation surveys are too easy to game. And the reputation scores of 1 through 5 are not granular enough. For example, Yale has an academic reputation score of 4.9, Harvard 4.8, and Stanford 4.7. That means that people in the surveys are rating these schools with 4s or less. Who gives less than a 5 to any of these schools on a 1-5 scale? Some of the other numbers factored into the US News equation are quite silly and can be easily cooked, with schools using accounting tricks that would make Enron officials blush.
Supreme Court Clerkship Placement — This is a ridiculous way to rank schools. Getting a Supreme Court clerkship is like winning the lottery. There are far too many qualified people than positions, and getting a position certainly takes merit but it also takes a lot of luck. Part of it depends upon the connections of a school’s professors, who can place clerks with feeder judges or may even have influence with a Supreme Court Justice. Nobody seriously goes to law school planning on getting a Supreme Court clerkship. And it’s based on total number of clerks, so the ranking in the WSJ column is meaningless since some schools are much larger than others (Harvard is more than twice the size of Yale).
June 26, 2007 at 4:37 pm
Posted in: Law School (Rankings)
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The CIA “Family Jewels” Documents
posted by Daniel Solove
The CIA has recently released about 700 pages of previously-classified documents, some of which reveal abuses in the name of national security. The CIA calls these documents the “family jewels.” The documents were created in connection with a report of CIA abuses for its former director, James Schlesinger. According to a BBC article:
CIA officers in service in 1973 largely used their memory to compile the 693-page report for Mr Schlesinger.
The abuses and illicit activities listed within date from the 1950s to the 1970s.
The documents were initially referred to as “skeletons” by Mr Schlesinger’s successor at the CIA, William Colby. They were later nicknamed the “family jewels” and have been referred to as such ever since.
It is quite sad that the CIA refers to records of its abuses as “jewels.”
Further, the BBC article states:
The documents detail assassination plots, domestic spying, wiretapping, and kidnapping.
The incidents include:
* the confinement of a Soviet KGB defector, Yuriy Ivanovich Nosenko, in the mid-1960s
* attempts to use a suspected Mafia mobster, Johnny Roselli, in a plot to assassinate Cuba’s Fidel Castro
* the wiretapping and surveillance of journalists, including in 1972 columnist Jack Anderson who broke a string of scandals
Among the documents is a request in 1972 for someone “who was accomplished at picking locks” who might be retiring or resigning from the agency.
The documents are available at GW’s National Security Archive, which collects and publishes documents obtained via the Freedom of Information Act (FOIA).
The New York Times has analysis and commentary:
The C.I.A. monitoring of journalists in 1963, 1971 and 1972, including wiretapping their phones and setting up observation posts across the street from their offices to track their comings and goings and their visitors, was a practice that the White House itself employed during the Nixon administration.
It’s interesting to see in the description of Project Mockingbird, which describes C.I.A. wiretapping of two Washington reporters (unnamed) from March 12, 1963 to June 15, 1963, that the intercepting of calls, executed under the authority of John McCone, the Director of Central Intelligence, was done in coordination with Attorney General Robert Kennedy, Defense Secretary Robert McNamara and the director of the Defense Intelligence Agency, Gen. Joseph Carroll.
So the Kennedy Administration was involved in the surveillance of journalists. One can only imagine what we’ll be writing about many years from now, when FBI and CIA documents during the Bush Administration are declassified. . . .
June 26, 2007 at 3:38 pm
Posted in: Privacy (National Security)
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Baby Naming Branding: 4Real or Just a Fad?
posted by Frank Pasquale
Recently, New Zealand officials kept parents from naming their child “4real,” saying “numerals are not allowed.” Whatever would happen to Jennifer 8 Lee? Legally, it’s a nice example of an ostensibly neutral rationale masking the more substantive value choices embodied in decisions like these:
In Germany, the government still bans invented names and names that don’t clearly designate a child’s sex. Sweden and Denmark forbid names that officials think might subject a child to ridicule. Swedish authorities have rejected such names as Veranda, Ikea and Metallica.
Apparently aggressive baby branding has become a hot topic for American parents, raising some interesting legal issues. According to the WSJ, parents are having a tougher time than ever choosing names:
As family names and old religious standbys continue to lose favor, parents are spending more time and money on the issue and are increasingly turning to strangers for help. . . The chief reason for the paralysis is too much information. About 80 baby-name books have been published in the last three years, according to Bowker, a publishing database — compared with just 50 such titles between 1990 and 1996. More than 100 specialty Web sites have popped up offering everything from searchable databases and online snap polls to private consultations.
As the proud bearer of a name that’s been in a long decline, I can sympathize with the careful choosers. But some rationales strike me as a bit bizarre:
They chose Beckett for their six-month-old son, a name the Alpers thought sounded reliable and stable. “That C-K sound is very well regarded in corporate circles,” Mr. Alper says, giving Kodak and Coca-Cola as examples. “The hard stop forces you to accentuate the syllable in a way that draws attention to it.”
I’m sure St. Thomas a Becket would be thrilled. He was, after all, “so disturbed in his devotions by the song of a nightingale that he commanded that none should sing in [Otford, Kent] ever again.”
PS: I would be remiss if I didn’t link to this fascinating piece on naming rights in a world of inequality.
June 26, 2007 at 2:48 pm
Posted in: Intellectual Property
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The Right to Food
posted by Dave Hoffman
[Another dispatch from Rome.]
Yesterday, we visited the UN’s Food and Agricultural Organization (FAO), based near the Circus Maximus. The FAO’s legal staff was gracious enough to give Temple’s students and faculty a presentation on their work, along with tips on how to get into international legal work.
The presentation and idea I found most interesting was the FAO’s advocacy on behalf of the (so-called) human right to food. The FAO (and the considerable scholarship on this topic) derive the right largely from the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 11:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent . . .2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
In response to a student question, the FAO’s lawyers acknowledged that this right is not presently internationally justiciable. Instead, in the words of the FAO’s strategic plan, advocates for the right should “support initial national implementation of the right to food and the Guidelines.”
June 26, 2007 at 3:25 am
Posted in: Civil Rights, Constitutional Law, Food, International & Comparative Law, Law and Inequality
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Game Over for Campaign Finance Reform?
posted by Frank Pasquale
Commenting on today’s decision on campaign financing (WRTL v. FEC), Richard Pildes highlights how a seemingly technical insistence on the protection of “issue ads” may undo the whole edifice of regulation:
[T]he analogy to the regulation of pornography is hard to miss here; there, the Court held that as long as sexual material had any other “redeeming social value,” the First Amendment protected it. In consequence, we saw the birth of x-rated films that offered just a bit more than unadulterated scenes of sex. Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes.
Expect more Swift Boatings and character assassinations, bedizened by fleeting mentions of “the issues.”
Commentators in the “thick of it,” far more knowledgeable on the topic than me, have declared WRTL a “sea change,” effectively repudiating the landmark McConnell decision that was only reached four years ago. But I have a sense the seeds for WRTL were sown about 30 years ago in Buckley, the leading case on campaign finance. Consider this ringing declaration from the 1976 Buckley opinion:
[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.
As soon as that point is capitulated, campaign finance reform becomes (to borrow a Borkian turn of phrase) a policy at war with itself. We already have anti-bribery laws to prevent quid pro quo exchanges of dollars for favors. Campaign finance regulation’s raison d’etre is to prevent the conversion of economic into political power. Buckley declared that rationale unconstitutional, and no advocacy is brilliant enough to evade those confines. Trying to argue for effective campaign finance regulation within the confines of Buckley is like trying to compose an epic in a villanelle: the form itself defeats the meaning one would give it.
June 25, 2007 at 6:26 pm
Posted in: Constitutional Law, Politics, Supreme Court
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Rosen’s Crabbed View of Judicial Temperament
posted by Nate Oman
I recently finished Jeffrey Rosen’s The Supreme Court (can you say “read” if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen’s analysis of what he took to be his central theme: judicial temperament. In many ways Rosen’s book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as “a judicial lounge act.”
Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and — most of all — John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen’s book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.
June 25, 2007 at 11:48 am
Posted in: Legal Theory, Sociology of Law, Supreme Court
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Singing the Blues
posted by Dave Hoffman
A nice story illlustrating a conflicts of rights problem from Philadelphia:
Maybe you’ve heard about the case of Anthony Riley, the cherubic American Idol wannabe with the angelic tenor who didn’t see why he should stop singing in Rittenhouse Square.Charged with disorderly conduct, he has his day in court July 3.
Since being cuffed and spending 18 hours in jail, Riley’s seen his star rise, singing for City Council, appearing on local television. He’s become the smiling face of a city-wide movement of those who believe music is free speech, and that police have better things to do than arrest someone singing “A Change is Gonna Come.”
Hard to argue with that.
But you probably haven’t heard from Jonathan Frank, who lives 11 floors above that jewel of a square, in a most rarefied prison.
“I represent the other side of the argument,” he says, sitting in his living room amid hundreds of books, a humming floor fan, and a pair of noise-canceling headphones bought for $35 at a store for hunters.
The rest of the column is pretty good too, especially the part where Riley asked the cop arresting him for the relevant statutory basis. The cop’s response: I am the law. Classic.
[Photo Credit: Law Records.]
June 25, 2007 at 4:46 am
Posted in: First Amendment
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Trumpeting the Telecosm
posted by Frank Pasquale
Many thinkers have touted the revolutionary potential of the “telecosm,” a world of infinite bandwidth capable of transmitting any message anywhere. But I’ve come across few passages as rhapsodic as this:
The network will supply room enough for every sight and sound, every thought and expression that any human mind will ever wish to communicate. It will make possible a wildness of spirit, where young minds can wander in adventurous, irresponsible, ungenteel ways. It will contain not innocence, but a sort of naïve gaiety, a buoyant, carefree feeling, filled with confidence in the future and an unquenchable sense of freedom and opportunity. It will be capitalist civilization at its best.
Can anyone guess where I found this gem of a prophecy (circa 1999)?
June 23, 2007 at 9:49 pm
Posted in: Media Law, Technology
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Excursus on the Beatles
posted by Frank Pasquale
I once heard a forlorn graduate student put a $20 bill in her dissertation in 1978, and when she returned to campus 20 years later to see if anyone had read her magnum opus, the bill was still there. Given that some proportion of law review articles never get cited, authors of the “long tail” of legal scholarship may want to develop some strategies to see if their own works are getting read. One strategy appears below the fold….
June 22, 2007 at 12:50 pm
Posted in: Law School (Law Reviews)
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Consumer Time Travel
posted by Dave Hoffman
(This is another in my series of dispatches from Rome. If you are getting tired of the concept, don’t worry: I’m coming home in a week.)
Two aspects of life here offer a nice comparative story about the way life in the United States used to be, and might become.
The first is the specialization of food shopping in Rome. Small shops for seemingly every type of food – cheese, meat, fruit, wine, cereals – line the streets in Rome’s old city center. In each shop, one (or two) employees dispenses food from behind a counter – it is not a self-service experience. It seems like these tiny shops, rather than the occasional small supermarket – are the primary way that citizens get their food. In a way, shopping here is like stepping back in time in the states to around 1940 or so. And there is something charming about the experience: the interactions (me in pantomime) are personal; the food is fresh and delicious; and you are less likely to slip and fall on a banana peel left on the ground. But the food is expensive, especially fruit, and if I were a busy citizen instead of a less-busy tourist, I’d find going to five different stores to complete my shopping to be a daily irritant.
Why does this specialization persist? I know less than I should about the risk of supermarkets in the United States, but I’ve a few preliminary thoughts. The first explanation denies that Italians shop at small stores outside of the cramped confines of City Centers. That is, just in the States, it is difficult for supermarkets to obtain purchase and economies of size in expensive urban cores. So, maybe, most Italian citizens do go to supermarkets, just not in places that tourists spend their time.
June 22, 2007 at 3:59 am
Posted in: Consumer Protection Law
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Critical Race Theory casebooks (and course structure) question
posted by Kaimipono D. Wenger
This fall, I’m going to be teaching a seminar on Critical Race Theory. It looks to be a fun topic to teach, and I’m excited about the class. I’m less excited about the pedantic task of selecting a book. However, with the bookstore breathing down my neck, book selection must take place. This requires me to nail down some underlying questions about course structure that I hadn’t really resolved yet.
I’m of two minds.
Option one is to assign one or both of the two essay collections that seem most suited for a seminar. (Delgado’s Cutting Edge, and Crenshaw et al’s Key Writings.) The class will hit several essays, and students will ultimately write a major paper on one essay (and probably a few minor paper responses to others). This sounds like fun. It also sounds quite a bit more unstructured than any other class I’ve ever taught.
Option two is to go a more structured route. West has a CRT casebook, by Dorothy Brown, that situates some of the ideas of CRT in a coherent outline format. If I use this one, I’ll probably drop one of the two essay collections, and go for a more structured, outlined sort of class.
I do like the idea of just essay-hopping and tying it all together loosely. But I don’t want to frighten the students, and I worry that a completely unstructured outline might do that. So — what do other professors (or Co-Op readers in general) think? In particular, has anyone here taught CRT using either of the methods I’ve mentioned — and if so, how did it go?
June 21, 2007 at 2:16 pm
Posted in: Law School (Teaching)
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Purloined Persona or Just Another FP?
posted by Frank Pasquale
Some experts recommend a quick “self-google” each week to be sure that all the information presented about you on the web is accurate. I learned the value of that approach earlier this Spring when lawyers from a hospital in Texas asked me if I was running something called “The Paris Site,” which lambasted their management. I reassured them I had nothing to do with it, and suggested that perhaps “Frank Pasquale” is a common enough name that it was someone else with that name that was running the site. However, they’ve now sued the blog for defamation, and are alleging its owner was trying to pass himself off as me:
The hospital contends the blogger’s alias and “assumed perona” of Frank Pasquale is apparently intended to mislead readers of the blog to think the blogger is Frank Pasquale, associate professor of law at Seton Hall Law School. That Frank Pasquale is a regular contributor to several blogs, but denies any affiliation to the blog or the blogger and was unaware the blogger had appropriated his identity until it was brought to his attention by the hospital.
Apparently the ISP has 20 days to reveal the identity of the site’s owner.
I’m a bit surprised by the whole thing, since there are a lot of other bloggers who write on health care whom this person could have posed as. Strangely enough, I have also written on the “disambiguation” concerns a case like this poses. (That part of the article is probably the least realistic as a policy proposal, but I count it as one small victory that someone from Google jokingly proposed giving everyone the right to change their name at 21 in order to avoid to being linked to what they wrote before then.)
So the lesson here is: even if none of your ex’s live in Texas, someone there might be up to some trickery (with apologies to George Strait).
UPDATE: William McGeveran of Info/Law provides some great commentary on the situation here.
June 21, 2007 at 8:22 am
Posted in: Google & Search Engines, Health Law, Intellectual Property, Privacy (Gossip & Shaming), Weird
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