Archive for September, 2007
Authenticity Arms Race
posted by Frank Pasquale
I’ve been concerned about America’s burgeoning culture of cosmetic surgery, and bloggers across the ideological spectrum have commented on the issue (see, e.g., here and here). Meanwhile, the great American forces of libertarianism and self-assertion are steamrollering ahead:
Not only have cosmetic procedures become more acceptable, but they’re being promoted in less sensationalized ways to whole new markets. Increasingly, reality TV’s Cinderella tale of surgical transformation is being replaced with a smart woman’s narrative of enlightened self-maintenance. . . . [M]edia sources now compliment potential customers as mature women who are “smart,” “talented” and “wise.” Such women are supposedly savvy enough to appreciate their own wisdom — but, then again, they should want to soften the telltale marks of how many years it took them to acquire it. “I am not using these injectables to look 25,” Madsen insists. “I don’t want to be 25. I just want to look like me.”
Carl Elliott’s book Better than Well documents a range of people who believe that their “true selves” are most truly expressed in some change of appearance–usually for the younger, slimmer, and stronger (which may be why almost everyone’s avatar on Second Life is so . . . robust).
The aspirations of the people Elliott writes about end up sounding like second-hand dreams (for a mass-produced individuality). Thomas Frank’s Commodify Your Dissent captured the worry well a decade ago:
Consumerism is no longer about “conformity” but about “difference.” Advertising teaches us not in the ways of puritanical self-denial (a bizarre notion on the face of it), but in orgiastic, never-ending self-fulfillment. It counsels not rigid adherence to the tastes of the herd but vigilant and constantly updated individualism.
Thus the latest co-optation of “left” culture by the beauty industry: its “repackaging and reselling the feminist call to empower women into what may be dubbed ‘consumer feminism.’”
September 30, 2007 at 12:01 am
Posted in: Culture, Law and Humanities, Law and Inequality
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Starvation via Gas Guzzling
posted by Frank Pasquale
The book Hungry Planet compares the average food consumption of families around the world. For example, the Aboubakar family lives on $1.23 per week. It looks like times are getting even tougher for families like these.
The impact of rising food prices on food aid is part of a broader debate about the long-term impact on the world’s poorest people of using food crops to make ethanol and other biofuels, a strategy that rich countries like the United States hope will eventually reduce dependence on Middle Eastern oil.
Some advocates for the poor say rising food prices could benefit poor farmers in developing countries, providing them with markets and decent prices for their crops. But others warn that the growing use of food crops to make fuel, especially if stoked by large subsidies in rich countries, could substantially increase food prices. That could push hundreds of millions more poor people into hunger, especially landless laborers and subsistence farmers, according to a recent article in Foreign Affairs magazine.
Thom Lambert provides good background on the issue. Certainly we should suspect the subsidies that threaten to divert ever more resources from the poor to the rich. But we should also look beyond the mercenary lobbying evident here to a broader range of phenomena afflicting buyers of products with a somewhat inelastic supply when rivals move in with vastly greater buying power.
September 29, 2007 at 11:04 am
Posted in: Law and Inequality
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The Right to Bear Ar–, Or Is It Access the Internet?
posted by Deven Desai
CNET reports that the government of Burma a.k.a. Myanmar has apparently cut-off Internet and cell phone access as a way to suppress information about the protests occurring there right now. The claim is that an undersea cable is damaged but given the convenience of such a coincidence that claim is being viewed with suspicion. As many know the information that has come through has been via cell phones, blogs, and text messages. Apparently some have even used FaceBook or e-cards to get messages out.
All of these events make we wonder whether the Bill of Rights would explicitly state that there is a right to free access and distribution of information over the Internet had the American Revolution occurred today. Now before everyone gets into a dither about the nature of the free press and what the First Amendment encompasses, I am suggesting that the situation described above shows the precarious nature of sharing information given the choke-points in place today. In other words, it seems that the benefits of technology also offer a much easier way to clamp down on society. Many have made this observation in the privacy context. Neil Richards’s post about the First Amendment gets to this point as well. We must consider what is at stake in today’s context. Put differently, could it be that the individual’s ability to access and use the Internet is now one of the key ways individuals serve to balance the power of the state?
Cross posted at Madisonian
September 28, 2007 at 5:59 pm
Posted in: Cyberlaw, First Amendment, Intellectual Property, Privacy (Electronic Surveillance), Technology
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The ACLU’s “Declaration of First Amendment Rights and Grievances”
posted by Neil Richards
Last week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:
To prove this, let facts be submitted to a candid world that the United States
government:
• Ignores its representative mandate by governing in the shadows.
• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.
• Secretly uses private parties to spy and seeks immunity to cover their illegalities.
• Silences dissent.
• Prevents citizens from petitioning their elected offi cials.
• Profiles individuals and denies freedom of movement based on association.
• Falsifies information to deny liberty.
• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.
• Prevents soldiers from communicating with their families and prosecutes their lawful speech.
• Silences whistle blowers.
• Censors the press, broadcast media, and Internet based on content.
• Prosecutes the press for revealing illegal programs.
• Obstructs oversight by elected officials.
• To preserve secrecy, places secret holds on bipartisan open government legislation.
• Funds religious programs.
• Furthers its ideological agenda by censoring the scientific community.
These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.
More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.
September 27, 2007 at 12:01 pm
Posted in: Civil Rights, Conferences, Constitutional Law, Criminal Law, Criminal Procedure, Current Events, First Amendment, Google & Search Engines, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security)
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Judge Strikes Down Part of USA Patriot Act
posted by Daniel Solove
In Mayfield v. United States, U.S. District Judge Ann Aiken (District of Oregon) held that parts of the Foreign Intelligence Surveillance Act (FISA) of 1978, which were altered by the USA Patriot Act in 2001, are unconstitutional. The case was brought by Brandon Mayfield, a who was put under extensive surveillance and then detained for two weeks because the FBI suspected him of involvement in the Madrid train bombing of 2004. The FBI thought Mayfield’s fingerprint was at the scene of the bombing, but it was gravely mistaken. According to the AP:
The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department’s internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.
In the court’s opinion, Judge Aiken describes Mayfield’s complaint as follows:
Plaintiffs’ Amended Complaint challenges the lawfulness of the physical searches, electronic eavesdropping and wiretapping performed pursuant to authorization from the FISC Court in Washington D.C., and the lawfulness of the government’s continued retention of materials derived from those searches, eavesdropping, and wiretapping. Plaintiffs allege that 50 U.S.C. § 1804 (electronic surveillance under FISA) and 50 U.S.C. § 1823 (physical searches under FISA) violate the Fourth Amendment ontheir face. Specifically, plaintiffs allege that pursuant to FISA and in violation of the Fourth Amendment, they were subjected to secret surveillance and searches of their home, law office, vehicles, and communications.
The judge agreed with the plaintiffs. In particular, Judge Aiken concluded, the USA Patriot Act’s changes to FISA made it run afoul of the Fourth Amendment.
To understand the judge’s ruling, a bit of background is necessary, and it is easiest to provide a brief excerpt from my article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004):
FISA creates a different regime for surveillance to obtain “foreign intelligence” information than the ECPA regime that governs regular government surveillance. The regime created by FISA is designed primarily for intelligence gathering agencies to regulate how they gain general intelligence about foreign powers within the borders of the United States. FISA is very permissive; it provides for expansive surveillance powers with little judicial supervision. FISA permits electronic surveillance and covert searches pursuant to court orders, which are reviewed by a special court of eleven federal district court judges known as the Foreign Intelligence Surveillance Court (“FISC”). The court meets in secret, with the government presenting applications for orders ex parte. If the government receives an adverse decision, it can appeal to a three-judge panel.
FISA’s protections against surveillance are much looser than those of the ECPA. Under the ECPA and the Fourth Amendment, surveillance is only authorized if there is a showing of probable cause that the surveillance will uncover evidence of criminal activity; under FISA, however, orders are granted if there is probable cause to believe that the monitored party is a “foreign power” or “an agent of a foreign power.” Unlike the ECPA, FISA surveillance is therefore not tied to any required showing of a connection to a criminal investigation. FISA does not have this safeguard since it is about gathering general intelligence about other countries and their activities within the United States. FISA orders can last for ninety days as opposed to thirty days for an ECPA order.
FISA was designed to address the issues left open by the Supreme Court in United States v. United States District Court (commonly known as the “Keith” case), 407 U.S. 297 (1972). In that case, the Court distinguished between three types of surveillance:
(1) electronic surveillance for domestic criminal investigations — the Court held a warrant with probable cause is required pursuant to the Fourth Amendment.
September 27, 2007 at 2:28 am
Posted in: Privacy (National Security)
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Cell Phone Gag Rule
posted by Frank Pasquale
There is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:
Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.
Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:
With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.
This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.
September 26, 2007 at 9:42 pm
Posted in: Culture, Current Events, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Legal Theory, Media Law, Philosophy of Social Science, Technology
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Thoughts On Jena and the Civil Rights Movement
posted by Timothy Zick
This past Thursday, we may have witnessed the face of the contemporary civil rights movement. Reacting to what they perceived as unduly harsh and discriminatory charging decisions by a local district attorney in the beating of a white student by six black students (the “Jena Six”), thousands of protesters descended on the tiny town of Jena, Louisiana. The controversy in Jena actually originated with the hanging of nooses by white students from the tree pictured at right, which was near a high school (it has since been torn down). White students had apparently long insisted that only whites were permitted to sit under the tree. The students who hung the nooses were suspended for a few days. Months passed, but racial tensions did not recede. Ultimately, there was an altercation that resulted in the charges noted above.
Some of the reporting on the “Jena Six” protest expressly invoked the 1960s civil rights movement. Some have even suggested that the “Jena Six” protest may mark the dawn of a new civil rights consciousness or movement. Several notable aspects of this recent protest suggest both similarities to earlier civil rights episodes and some important differences. As for similarities, the protesters clearly thought it important that they assemble and express their frustration in the town itself. As noted below, there was a substantial amount of online networking. But in the end, there was a felt need to assemble and speak in a physical place where protest was likely to be noticed (by the media, of course, but also by members of the Jena community). By their presence, the protesters sought to make Jena a symbol of the unfairness of the criminal justice system, just as Selma has come to symbolize inequality in the franchise and Little Rock the stigma of segregated education. When they descended on the town, protesters instinctively used specific places within the town — the courthouse where one of the “Jena Six” was thought to be held and the tree — to amplify their message. They appear not to have sought permission, by permit or otherwise, to assemble and speak. In that sense, at least, the protest was defiant. In these respects, the Jena protest looked on the surface much like street protests of the 1960s.
Despite these similarities, there were some substantial differences between the Jena protest and earlier civil rights protests. Unlike protests of the 1960s, the reaction time from event to assembly was remarkably short. Indeed, the protest in Jena was organized and effectuated almost overnight. Protest spontaneity was facilitated to a large degree by new technologies and media. Word of the “Jena Six” spread rapidly on the Web. At least since the 1999 Seattle WTO protests, activists have been relying upon new technologies to organize public demonstrations, document events on the ground, and in some cases counter police tactics. During the Jena protest, civil rights activists embraced these methods. News and protest plans were disseminated on blogs administered, and heavily trafficked by, African-Americans. African-American talk radio also played a critical role in bringing protesters together. This access to media was important in both organizational and expressive terms. In previous eras, protesters had to rely upon media like television to convey their message. With mobile, hand-held technologies protesters were able to document the events themselves, from their own perspectives, allowing them to bypass media filters to some extent. Further, unlike previous civil rights protests — but like most Web-originated swarms — the “Jena Six” protest initially lacked a traditional organizational structure or distinct leadership hierarchy. Indeed, civil rights leaders like Jesse Jackson and Al Sharpton were apparently caught somewhat off guard by the reaction to events in Jena (Rev. Sharpton said he learned of the controversy on the Web). The Jena protest, unlike prior civil rights displays, was not part of a more sustained campaign; once it was over protesters quickly left the area. Finally, and fortunately, this time there was no violent reaction — by either police, who mostly stayed in the background, or citizens (who mostly stayed home). (There were, however, some menacing statements regarding the “Jena Six” on the Web.) There were no hoses, no dogs, and no physical altercations between protesters and police. The marches and demonstrations appeared peaceful and generally well-organized. By most accounts, the mood of the protesters could be described as concerned, but generally relaxed and even at times festive.
What, if anything, might these similarities and differences indicate regarding the future of the civil rights movement?
September 26, 2007 at 2:55 pm
Posted in: Civil Rights
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September Responses
posted by University of Pennsylvania Law Review
PENNumbra has recently featured a number of excellent new responses to several of the Penn Law Review’s print edition articles:
Benjamin C. Zipursky, in Evidence, Unfairness, and Market-Share Liability: A Comment on Geistfeld, responds to Mark A. Geistfeld’s The Doctrinal Unity of Alternative Liability and Market-Share Liability, arguing that the proposals in Geistfeld’s “provocative and insightful” article may be too far-reaching, and specifically contending that Geistfeld’s “arguments made from a normative point of view for the principle of evidential grouping are unsound.”
David D. Meyer, in The Geography of Family Privacy, responds to Laura A. Rosenbury’s Between Home and School, praising Rosenbury for “calling attention to the lack of scholarship addressing the childrearing that takes place” outside of the home and school environs, but noting that he remains unconvinced that it wouldn’t be better to use location “not as an organizing principle, but as a more indeterminate factor in calibrating the strength of justification required of the state for any intervention in childrearing.”
Paul E. McGreal, in In Defense of Complete Preemption, responds to both Gil Seinfeld’s The Puzzle of Complete Preemption and Trevor W. Morrison’s response to Seinfeld, Complete Preemption and the Separation of Powers, arguing that both Geistfeld and Morrison fail to fully conceptualize the well-pleaded complaint rule and asserting that “the complete preemption doctrine and the bar on pleading anticipated defenses are simply two sides of the well-pleaded complaint coin.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles, including Issue 6 of Vol. 155—the Symposium Issue, featuring the culmination of the conversation that began last November when the Penn Law Review held a Symposium on the topic, “Responses to Global Warming: The Law, Economics, and Science of Climate Change.”
Scholars interested in participating in a debate on PENNumbra, or in writing a response to any print edition article, PENNumbra debate, or previous PENNumbra response should send an email to online@pennumbra.con.
September 25, 2007 at 7:54 pm
Posted in: Law Rev (Penn), Law Rev Forum
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Is Sorting Law School’s Only Function?
posted by Dave Hoffman
Bainbridge and others are abuzz over Rush and Matsuo’s paper, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of the Factors Which Were Related to Bar Examination Passage between 2001 and 2006 at a Midwestern Law School. The paper reports that simply taking “bar courses” generally does not improve performance on the Bar Exam.
The paper is clearly written but not (for me) surprising: it fits unpublished research I’ve seen, and common sense. I’d bet that a large minority of all law professors, and a majority of law professors hired since 1990, haven’t sat for the Bar in the jurisdiction hosting their law school. It would be surprising if teaching behind this veil of ignorance could significantly improve test scores for marginal students. You can’t teach to a test you haven’t seen.
But if that’s true, two questions come to mind. The first has been addressed by some commentators already, and boils down to: if not bar courses, what courses should law students take? Josh Wright responds: antitrust! Sam Kamin disagrees: professors you like! As for me, I offered the following comments in a package of diverse suggestions on this topic from my colleagues distributed to our first year students at the end of the Spring term:
I recommend that you select courses that are challenging and intrinsically interesting. This means tailoring course selection to your abilities (take a tax course, especially if you are afraid of math); and interests (recall what made you excited about the Law before coming here). The data I have seen do not correlate Bar passage with any particular package of courses, but rather with your overall performance and work ethic. Certain employers may expect to see foundational courses like corporations and evidence on your transcript, but I believe those expectations are the exception rather than the rule. The bottom line: take classes that will make you want to come to school in the morning.
Maybe such advice is helpful, maybe not. But regardless, it doesn’t answer the big (second) question, which is this: is there a point to law school beyond sorting students?
September 25, 2007 at 3:12 pm
Posted in: Law School, Law School (Rankings), Law School (Teaching), Legal Ethics
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Gaining the Whole World
posted by Frank Pasquale
I want to respond to Ilya Somin’s claim that religious leaders need to learn (some version of) economics before opining on social justice. A curious editorial by Arthur Brooks provides a nice entree into the topic.
Mr. Brooks writes frequently on the WSJ editorial page on charity and religion. He lauds the charitable sector as superior to government-funded services, and offers survey evidence to demonstrate that religious people are both more charitable and happier than their secular peers. Brooks found the revelation of Mother Teresa’s profound and persistent sorrow a reason to re-emphasize that fact that, on average, the religious are statistically more likely to be happier than others:
The happiness gap between religious and secular people is not because of money or other personal characteristics. Imagine two people who are identical in every important way — income, education, age, sex, family status, race and political views. The only difference is that the first person is religious; the second is secular. The religious person will still be 21 percentage points more likely than the secular person to say that he or she is very happy.
On one level, I think this is important data: a classic premise of natural law is that submission to right belief and right action makes for genuine happiness. You only need to watch a few episodes of “Behind the Music” to get a sense of where untrammeled hedonism will lead.
However, the failthful also embrace the negative emotions associated with religious experience. A religious person may feel guilt or self-reproach at how little he’s done to relieve the world’s suffering. Penance is not a fun experience. Perhaps the Book of Ecclesiastes put it best: “in much wisdom is much grief: and he that increaseth knowledge increaseth sorrow.” As Kierkegaard critiqued a complacent Christendom, so too should the modern believer question any effort to facilely align personal/national prosperity and Christian teaching.
I thus question Brooks’s “validation” of religious faith by its statistical correlation to “happiness”–particularly the crude measures of that state common to survey instruments. Much of religious thought refuses to be contained in our ordinary notions of well-being or success, a point eloquently made in the series of paradoxes posed in the prayer of St. Francis.
These paradoxes also render suspect the many suggestions of market-oriented thinkers that church leaders need to conform social teaching to particular economic models.
September 25, 2007 at 1:42 pm
Posted in: Religion
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Letters to a New Dean
posted by Daniel Solove
Over at TaxProf, Paul Caron and Bill Henderson are soliciting advice for Erwin Chemerinsky as he embarks on the task of developing a new law school. They write:
The hiring, firing, and re-hiring of Erwin Chemerinsky as founding dean of the new UC-Irvine law school has attracted enormous national attention. . . . Bill Henderson and I want to use this moment in time to generate and publicize the best ideas about reforming legal education from some of the leading thinkers in the law school world. Next week, TaxProf Blog will begin posting the answers of university presidents and provosts, and law school deans, faculty, students, and career planning professionals, to this question:
What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?
Each contribution will be limited to no more than 250 words.
Thus far, Paul Caron (Cincinnati), Bill Henderson (Indiana), Paul Butler (GW), and Mark Herrmann (partner, Jones Day) have contributed.
September 25, 2007 at 11:41 am
Posted in: Law School
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Law Talk: Al Brophy on Slavery, Reparations, and Institutional Responsibility
posted by Nate Oman
In this week’s episode of Law Talk, we hear from Professor Al Brophy of the University of Alabama Law School. In addition to his fame as a Co-Op guestblogger, Al is a legal historian with a special interest in issues of slavery and race in American law. Al is also interested in issues surrounding debates over reparations and apologies for slavery. In this podcast, he discusses how universities and colleges with links to slavery might deal with these issues, using the example of my own employer, The College of William & Mary.
You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.
September 24, 2007 at 12:14 pm
Posted in: History of Law, Law School, Law Talk, Race
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Freedom to Teach?
posted by Neil Richards
The American Association of University Professors recently issued a white paper on academic freedom in the classroom. The report is a statement of principles by its Committee A on Academic Freedom and Tenure, which includes law professors Matthew Finkin (Illinois) and Robert Post (Yale), in response to a series of calls (including legislative proposals) for “balance” and neutrality of viewpoint in the classroom:
[C]ontemporary critics of higher education argue that instructors must refrain from stating strong opinions, for doing so would both lack balance and constitute indoctrination; that instructors must not advance propositions germane to a subject if some students with deeply held religious or political beliefs might be offended, for
doing so would create a hostile learning environment;and that instructors must abjure allusions to persons or
events that advance discussion but that some students might fail to perceive to be clearly connected to a course
description, for doing so would inject irrelevant material into the classroom. Such restrictions would excise “freedom
in the classroom” from the 1940 Statement; they would conduce not to learning but to intellectual sterility.
The response of the AAUP can be summed up in their own words as follows:
Close analysis of recent charges of classroom abuse demonstrates that these criticisms
do not seek to vindicate professional standards, because they proceed on premises that are inconsistent with
the mission and practice of higher education. Calls for the regulation of higher education are
almost invariably appeals to the coercive power of the state. In recent attempts to pass legislation to monitor
and constrain faculty in the classroom lies a deep menace, which the architects of the American concept
of academic freedom properly conceived as a potential “tyranny of public opinion.” American universities
have been subject to this tyranny in the past. Walter Gellhorn observed in 1952 that the drive to root out
communists was based on the assumption that “they will abuse their academic privileges by seeking to
indoctrinate students.” Gellhorn noted that when the New York legislature declared in 1949 that communists
ought not be permitted to teach because they disseminate propaganda, the legislature added that the
propaganda “was frequently ‘sufficiently subtle to escape detection in the classroom.’” Modern critics of the university seek to impose on university classrooms mandatory and ill-conceived
standards of “balance,” “diversity,” and “respect.” We ought to learn from history that the vitality of
institutions of higher learning has been damaged far more by efforts to correct abuses of freedom than by
those alleged abuses. We ought to learn from history that education cannot possibly thrive in an
atmosphere of state-encouraged suspicion and surveillance.
The report (which is available in the latest issue of Academe) makes fascinating reading for anyone interested in ideas of academic freedom in the classroom and teaching more generally. In my free speech and privacy classes at Wash. U., we inevitably encounter controversial issues, both about the jurisprudence and the political struggles that guide it, including terrorism, obscenity, criticism of the government, and older issues that once convulsed the nation like Vietnam and the Red Scares. I rarely take stands (at least intentionally) on these questions, but mostly because I believe that the nature of the subject demands a certain agnosticism from me given the commitments to the free exchange of ideas that is at issue in the jurisprudence. In this regard, recognizing my own ability as instructor to affect the marketplace of ideas in my classroom, I take the invitation that Tim has just given to the Senate. Sometimes I will take positions (whether I agree with them or not) in order to advance the discussion, but I try not to get too ideological, even though I have strong personal and scholarly views that are inevitable given the amount of time I spend thinking about questions of free speech and privacy in a democratic society.
But I do think it’s both inevitable and appropriate that faculty will bring their opinions as well as their knowledge into the classroom (even with the big assumption that we can separate the two). Scholars (especially those in the humanities and law schools) spend much of each day thinking and writing and developing normative or interpretive arguments. These arguments are put before the public in their writing and in the media, and there is no reason that they should not be presented to their students. Indeed, to do otherwise would be to deprive the students of the very thing they are paying a small fortune to receive – to be exposed to intelligent people with (hopefully) original thoughts about important topics. Of course, faculty must be careful not to present their ideas as truth – if they are making an argument, they must provide sufficient opportunities to be disagreed with (especially in law schools, where this exchange can serve valuable goals at the heart of the pedagogical project). Faculty may cross the line here, but I agree with the AAUP report that when this happens, internal mechanisms of professional discipline, not external regulation, is the appropriate response.
In any event, the report is a thoughtful and thought-provoking take on some critical and timely issues, and even if you don’t agree with me (or them), it’s well worth reading and thinking about.
September 24, 2007 at 12:07 pm
Posted in: First Amendment, Law School (Teaching), Politics
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My New Book’s Snazzy New Website
posted by Daniel Solove
Very soon, my new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet , will be out in print. In anticipation of the book’s launch, my research assistant Ben Shapiro helped me design a snazzy new website for the book. A few of the elements are my ideas, but by and large, the site is the product of Ben’s computer wizardry. Thanks, Ben.
The book is my attempt to address some of the issues I’ve been blogging about for the past few years. It is written for a general audience, as I think that these issues have broad appeal. I’m really excited about this book, and so I will not be able to resist writing about it more when it is out.
I also am quite pleased with the new cover. The old cover design is to the left. The new one is to the right.
Creating the cover was quite a lengthy and difficult process — almost harder than writing the book! Yale University Press allowed me to have a lot of input on the cover design, and I’m the one to blame for the image and color scheme. So I hope you like it. And I hope you check out the website to see Ben’s terrific work.
September 24, 2007 at 12:05 am
Posted in: Articles and Books, Privacy, Privacy (Gossip & Shaming)
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War and the Politics of Free Speech
posted by Timothy Zick
A few days ago, the United States Senate handily (75-25) passed a “sense of the Senate” resolution condemning a political advertisement placed in the New York Times by the anti-war group MoveOn.org. Many conservatives, most prominently presidential candidate Rudy Giuliani, complained both about the substance of the ad and the process by which it came to be in the Times — the allegedly “discounted” price and the timing (the ad ran the day of General Petraeus’s congressional testimony). The ad referred to General Patraeus as “General Betray Us” and accused him of “cooking the books” for the White House to justify the much-debated surge in Iraq. After reviewing the General’s credentials, the Senate resolution calls on the Senate to “strongly condemn all personal attacks” against General Petraeus and other members of the armed services and to “specifically repudiate the unwarranted personal attack on General Petraeus by the liberal activist group MoveOn.org.” (A propsoal sponsored by Senator Barbara Boxer (D-California), which failed (51-46), more broadly called on the Senate “to strongly condemn all attacks on the honor, integrity and patriotism” of those in the armed services.)
As Sandy Levinson has observed, the ad was extraordinarily “dumb politics.” It allowed supporters of the war in Iraq to once again shift the debate from events on the ground in that country to partisan domestic politics in this one. As I noted in an earlier post, there are substantial dangers attending the cozy relationship between many prominent Democrats and anti-war advocacy groups like MoveOn.org. In the face of what was indeed a sharp attack on General Petraeus, Republicans once again rallied behind the “support the troops” mantra. President Bush himself took the unusual step of condemning the ad, suggesting that members of the Democratic Party were “more afraid of irritating [MoveOn.org] than they are of irriating the United States military.” Under the circumstances, many Democrats apparently felt they had no choice but to publicly denounce the ad and vote for the resolution.
It is a pity Senators of both parties did not reject and renounce this politicization of free speech. Although the Senate’s finger-wagging resolution carries no penalties (and thus cannot be challenged as a violation of the First Amendment), it is shamefully antithetical to the spirit and values of the First Amendment. In New York Times v. Sullivan, the Supreme Court emphasized our “profound national commitment to the principle that debate on public issues should be uninhibted, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In times of war, when lives are literally at stake, one can reasonably expect less inhibition on the part of speakers. Of course, senators possess individual expressive rights. But it is inappropriate for the United States Senate to institutionally condemn expression regarding matters of public concern, or to single out a political advocacy group for special rebuke. In our marketplace of ideas, the people ought to decide for themselves whether the criticism of General Petraeus constituted an unwarranted “personal attack” or a warranted criticism. The Senate’s condemnation distorts the marketplace and threatens to chill others from presenting sharp attacks against favored subjects. Although it focuses on MoveOn.org and its advertisement, the Senate resolution seems to suggest that military leaders and members of the armed services are now beyond “sharp” and “caustic” criticism. Is the president, as Commander-in-Chief of the armed forces, entitled to the same protection from “personal attacks”? The business of the Senate is to debate and enact laws for the benefit of the country. Surely that distinguished body has more pressing business than the politicization of expression.
September 23, 2007 at 1:35 pm
Posted in: First Amendment
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The Care/Profit Tradeoff in Nursing Homes
posted by Frank Pasquale
We’re often told that inequality helps keep the US economy efficient. Cut regulation and give high rewards to those at the top, and they’ll work hard to cut costs and compete on quality, providing better and cheaper goods and services for all. Private equity firms like Carlyle Group might be considered the apotheosis of such a market-based approach, taking over companies and forcing them to meet market imperatives.
Here’s a fascinating NYT study of their influence on the nursing home industry, which “compared investor-owned homes against national averages in multiple categories, including complaints received by regulators, health and safety violations cited by regulators, fines levied, [and] the performance of homes as reported in a national database known as the Minimum Data Set Repository.” The findings describe an extraordinary combination of business efficiency and deflection of legal responsibility:
The Times analysis shows that . . . managers at many . . . nursing homes acquired by large private investors have cut expenses and staff, sometimes below minimum legal requirements. Regulators say residents at these homes have suffered. At facilities owned by private investment firms, residents on average have fared more poorly than occupants of other homes in common problems like depression, loss of mobility and loss of ability to dress and bathe themselves, according to data collected by the Centers for Medicare and Medicaid Services. The typical nursing home acquired by a large investment company before 2006 scored worse than national rates in 12 of 14 indicators that regulators use to track ailments of long-term residents.
The law plays an important role in preventing accountability here; “private investment companies have made it very difficult for plaintiffs to succeed in court and for regulators to levy chainwide fines by creating complex corporate structures that obscure who controls their nursing homes.” So perhaps the key “innovation” here was the decision to aggressively reduce care and skillfully deploy legal strategies to prevent any liability for injuries that reduced care caused. It certainly worked well for investors; “A prominent nursing home industry analyst, Steve Monroe, estimates that [one investment group's] gains from [its sale of a nursing home chain] were more than $500 million in just four years.”
I have to confess that I’ve always wondered what business practices could “create the value” that’s resulted in such extraordinary gains at the top of the income scale. The Times has done us a great service by putting a human face on some of them. . . and on the legal strategies that make them possible.
September 23, 2007 at 11:28 am
Posted in: Bankruptcy, Corporate Law, Health Law, Law and Inequality, Politics, Sociology of Law, Tort Law
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SCHIP Fact Check
posted by Frank Pasquale
As the children’s health insurance bill heads toward a veto from the President, it’s important to discuss exactly why he thinks it so important to keep insurance out of reach of so many kids. After all, about 11% of all children are uninsured. A fact check from the Center on Budget and Policy Priorities helps clarify matters and is heavily quoted below.
On Sept. 20, the President asserted that there was a tension between insuring “poor” children, and expanding the program to those coming from middle class families. I’m a bit skeptical–as employer-based health insurance becomes harder to find, more of the middle class is starting to face the same difficult individual insurance market as the poor. Moreover, consider this analysis from the CBO:
A Congressional Budget Office analysis of the SCHIP bill passed by the Senate last month — which the emerging agreement will closely resemble — found that at least 85 percent of the otherwise-uninsured children who would gain coverage under the bill have incomes below states’ current SCHIP eligibility limits.
Here’s a bit more commentary on the President’s position:
The President’s statement that Congress should “focus on making sure poor children get the health insurance they were promised” is particularly ironic given that on August 31, the Administration announced that it would completely eliminate federal Medicaid matching funds for Medicaid outreach and enrollment activities undertaken by school personnel, even though this is widely recognized as one of the best ways to reach poor children who are eligible for publicly funded coverage but are unenrolled and uninsured.
The administration has also argued that “tax breaks” should be the preferred resolution of the crisis of the uninsured, but “less than one-quarter of the benefits of those tax breaks would go to people who would otherwise be uninsured, according to an analysis by MIT economist Jonathan Gruber.” Gruber is no reflexive liberal–he’s on the conservative wing of Massachusetts’ Connector Clearinghouse for health insurance plans. But people across the ideological spectrum can recognize that a “world in which the sick and dying get to deduct some of the cost of health insurance that they don’t have — and can’t get — on their taxes” isn’t much of a policy accomplishment.
One last point from CBPP after the break:
September 23, 2007 at 8:47 am
Posted in: Health Law
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Survival of the Compassionless
posted by Frank Pasquale
If you’re interested in the logical endpoints of an unregulated health care marketplace, two recent stories are a good place to start. In John Carreyrou’s Medical Maze, a breast cancer patient gets bounced from clinic to clinic because she failed to get diagnosed at a federal cancer-detection program. And after managing to cripple New York state’s efforts to expand health care to low-to-middle income children, the Bush Administration is targeting more marginal groups :
Under a limited provision of Medicaid . . . the federal government permits emergency coverage for illegal immigrants and other noncitizens. But the Bush administration has been more closely scrutinizing and increasingly denying state claims for federal payment for some emergency services, Medicaid experts said.
Some states are defying the administration. If they fail, consider the consequences for the health care marketplace.
In response to the administration’s efforts to restrict emergency care,
New York City public hospitals, which serve 400,000 uninsured patients a year, among them illegal immigrants, would continue to provide the cancer treatment no matter what, said officials from the Health and Hospitals Corporation. But if there is no reimbursement from Medicaid, they said, they will have to look elsewhere for financial support.
Now consider the competitors of such hospitals–ones that will insist on only treating the insured.
September 22, 2007 at 10:59 am
Posted in: Health Law
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Google’s Self-Undermining First Amendment Strategy
posted by Frank Pasquale
As Google grows, regulators are starting to take notice. Many have written about the scary privacy implications of massive database coordination, but the legal discussion is only beginning about the results of Google searches. Consider the fate of countless businesses which depend for their livelihood on internet-based customers. John Battelle chronicled one small business’s Google crisis:
Right before the critical holiday shopping season of Thanksgiving and Christmas, the phones stopped ringing at [large-shoe seller] 2bigfeet.com. . . . [it] was no longer the first result for “big feet” on Google. In fact, it wasn’t even in the first hundred results. As [business owner Neil] Moncrief put it, it was as if the Georgia Department of Transportation had taken all the road signs away in the dead of night, and his customers could no longer figure out how to drive to his store. . . .
Google had tweaked its search result algorithms, something the company does quite frequently. But this time Google’s modifications, which were intended to foil search engine spammers – people who dishonestly modify their web sites to rank higher in search engine results – had somehow sideswiped Moncrief’s site as well. What Google giveth, Moncrief learned the hard way, Google can also take away.
When a company can exercise make-or-break power over internet-based businesses, does it need to be held accountable to some standards? Google says that it does not–that it has a First Amendment right to rank web entities as it pleases. But consider what Google itself thinks of the companies that own the “pipes” that transmit its services.
September 21, 2007 at 3:19 pm
Posted in: Google & Search Engines
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The Do Not Call List’s Memory Lapse
posted by Daniel Solove
So you signed up for the federal Do Not Call List and expect not to receive any more of those annoying telemarketing calls ever again. Think again. Signing up expires after 5 years, so if you signed up back when the list first came into existence, you’ll need to sign up all over again soon. It’s the FTC’s way of making us feel like Sisyphus. Lame.
According to the AP:
The cherished dinner hour void of telemarketers could vanish next year for millions of people when phone numbers begin dropping off the national Do Not Call list.
The Federal Trade Commission, which oversees the list, says there is a simple fix. But some lawmakers think it is a hassle to expect people to re-register their phone numbers every five years.
Numbers placed on the registry, begun in June 2003, are valid for five years. For the millions of people who signed onto the list in its early days, their numbers will automatically drop off beginning next June if they do not enroll again.
The article also states:
Since the registry began, the government has filed cases against more than 30 companies, resulting in $8.8 million in civil penalties and $8.6 million in redress to consumers and forfeitures.
Only a few more than 30? That’s it? I strongly doubt compliance with the Do Not Call List has been this good. Smells like weak enforcement to me.
Hat tip: Adler at the VC
September 21, 2007 at 1:41 pm
Posted in: Privacy (Consumer Privacy)
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