Archive for October, 2007
Creative Ways Spammers Get Past CAPTCHA
posted by Daniel Solove
Many blogs and websites are using CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart) systems to help weed out spam comments. Spam comments are sent by bots, and CAPTCHA systems are designed to test whether the comment is from a human or a bot. An example looks like this:
So how are spammers trying to get around it? They are using creative ways to trick humans into solving the CAPTCHA riddles:
In the new scam, an icon of an alluring woman suddenly appears on a Windows computer infected by a virus. After clicking on the icon, the user sees a photo of an attractive woman who vows to take off an article of clothing each time the jumble of figures next to her is entered.
But the woman never fully undresses, and after several passwords are entered the program restarts, possibly enticing unsuspecting users into trying again. . . .
Paul Ferguson, network architect at Trend Micro, speculated that spammers might be using the results to write a program to automatically bypass CAPTCHA systems.
“I have to hand it to them,” Ferguson said, laughing. “The social engineering aspect here is pretty clever.”
October 31, 2007 at 8:04 pm
Posted in: Technology
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Is Anyone for the Farm Bill?
posted by Frank Pasquale
I just got the following action alert from OxFam:
The Senate bill being considered, like the House version that passed, favors a relatively small number of producers at the expense of most farmers and rural communities, and it falls short of meeting its obligations to families that depend on food stamps and to conservation programs that protect rivers and streams. To make things worse, the Farm Bill would actually hurt poor farmers in developing countries. . . . [Meanwhile,] millionaire farmers . . . receive unfair subsidies.
My question is: is it mainly interest group politics and campaign finance transactions that permit bills like this to pass over and over? Or do they naturally flow from a Senate that may overrepresent big agribusiness? Tom Geoghegan notes that “the 50 Senators from the 25 [least populated] states represent 16 percent of the population.”
October 31, 2007 at 4:24 pm
Posted in: Agricultural Law
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Bad Boys, Bad Boys, Here’s How to Hide Your Stash? Ex-Texas Officer Sells DVD About How To Avoid Drug Arrests
posted by Deven Desai
Last December MSNBC reported that Barry Cooper, a former police officer who handled drug enforcement planned to sell a video called “Never Get Busted Again.” One former colleague said Cooper might have been “the best narcotics officer in the state.” Cooper claimed to think that the U.S. marijuana policy was foolish and that his video would be a way to show people how to protect civil liberties and to reveal injustice in the system. Maybe. Today, NPR has a story about the release of the video. It is called “Never Get Busted Again” and apparently uses the film style of reality cop shows. The article details how Cooper used indicators such as college bumper stickers, Vietnam veteran stickers, and race to decide whom to pull over and search for marijuana. He even trained police departments about the technique. So perhaps he really wants to show how the system is unjust. The motivations behind that goal are, however, not necessarily about legalizing marijuana and improving civil rights.
NPR noted that Cooper’s personal experiences fueled his current activities. He moved to east Texas and arrested a mayor’s son and city councilman which apparently upset local authorities. After he left law enforcement, a divorce followed. He was arrested for late movie rental returns and “His ex-brother-in-law, a constable, showed up with an order to remove his two girls. They put up such a fight, the effort was abandoned.” Those events are at least partially behind his decision to make the film which covers topics such as “Search and Seizure,” “Hiding Your Stash,” “Narcotics Profiling” and “Canines.”
Cooper plans a follow-up called “Never Get Raided Again.” The new movie idea has upset law enforcement as it could endanger officers on a raid. Given that some argue that books like the Anarchist’s Cookbook should be banned or for example in England ownership of the book is a enough to bring terrorism charges, it would not be surprising if someone tries to stop Cooper’s films from being published based on a public safety or terror claim.
October 31, 2007 at 12:37 pm
Posted in: Uncategorized
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Response: Just Following Orders
posted by University of Pennsylvania Law Review
PENNumbra‘s featured works of October are now available at www.pennumbra.com.
The latest featured October Response on PENNumbra is Just Following Orders, by Roderick M. Hills, Jr. It is an analysis of Norman R. Williams’s 2006 article, Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage. Professor Hills praises Professor Williams for recognizing that “whatever the merits of [the departmentalist and judicial supremacist] positions as interpretations of the U.S. Constitution, both are hopelessly unpersuasive when applied to state constitutions.” He then examines Professor Williams’s defense of “a third method—‘the legislative model’—for determining when agencies should just follow orders from the legislature.” However, he ultimately concludes that “Professor Williams’s theory ignores the facts about democratic accountability and expertise that most of us would regard as critical,” and argues that “this gap suggests a problem with his theory”—a gap that Professor Hills hopes Professor Williams fills in his next examination of executive review.
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.
October 31, 2007 at 9:47 am
Posted in: Law Rev (Penn), Law Rev Forum
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The 64,000 Children Question
posted by Frank Pasquale
As the SCHIP showdown drags on, the state officials in charge of administering the program are getting worried:
Officials in charge of the child health program in California said Tuesday that they were adopting rules to allow the state to create a waiting list and to remove some of the 1.1 million children already on the rolls.
“The stalemate in Washington is having a real impact on children here,” said Lesley S. Cummings, executive director of the agency that runs the child health program in California. “Given continued uncertainty, we will have to start dropping children from the program — 64,000 a month, starting in January — to save money. This is getting less and less hypothetical.”
So while I’m happy that the insurance industry and the Secretary of Health and Human Services are exploring the Dutch and Swiss health systems, let’s not lose sight of those whose health insurance hangs by a thread over the coming weeks.
One of the best things about the blogosphere is that it makes accessible the voices on the other side of the great chasm that divides the insured and the uninsured in this country. Here’s one of them:
[in my experience,] it’s not right, it’s not normal or natural, for a poor person to walk into the doctor’s office and not expect an all out fight with the office bill collectors, roughness and shortness in conversation from the doctors, raised eyebrows in disbelief from all concerned and a final dism[issal] of “well, you’re insurance doesn’t cover it anyway, so take lots of aspirin and you’ll feel better eventually.”
Clearly there are a great deal of policy issues we need to sort out as we move toward universal coverage. But I hope the voices of the poor can play as big a role in the conversation as those of insurance companies, doctors, and “sponsored researchers.”
October 31, 2007 at 8:45 am
Posted in: Health Law
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Funerals and Free Speech
posted by Timothy Zick
First, thanks to Dan and the other authors for giving me a platform from which to discuss issues relating to public expression as well as other miscellaneous matters. I have greatly enjoyed my guest stint here at CoOp, and am especially grateful to those who have engaged my arguments with thoughtful comments.
In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church’s members — which consist primarily of relatives of a single family — have drawn public attention and ire for protesting at the funerals of service men and women killed in Iraq and Afghanistan. (Members have also protested near military hospitals.) Their “message” is that God is killing American soldiers to punish the United States for “condoning” homosexuality. The protesters tend to stand — peacefully for the most part, but quite noticeably — on sidewalks and other public properties near the entrance to cemeteries. They hold signs conveying messages like “God Hates Fags” and “Thank God for Dead Soldiers.” The protesters’ presence is obviously deeply upsetting to families and friends who have come to pay their last respects. Three dozen states and Congress have enacted statutes that attempt to limit, in a variety of respects, the time, place, and manner of “funeral protests.” The First Amendment Center has a useful summary of the protests and the legal response to them. In a first-of-its-kind lawsuit, the parent of one marine whose funeral was picketed by Westboro members has filed a tort lawsuit against the church, alleging intentional infliction of emotional distress. That trial is currently taking place in Maryland federal court.
One of the things that I find most fascinating about real-space expressive contests is their tendency to challenge our commitment to ideals of “robust and wide open” debate and liberty to offend and provoke others. Of course, content on the Web offends and challenges sensibilities too. But on the sidewalks and streets, as elsewhere on the tangible expressive topography, the offense is felt when and how it hurts most — in person and in real time and space. Because the message is delivered at or very near the point of contest, the audience has a much more difficult time avoiding it. The speech and speakers involved in funeral protests push hard at the First Amendment envelope. Indeed, many wonder how this sort of expression can possibly be defended. I am not concerned here with setting appropriate spatial boundaries — i.e., whether a 200- or 500-foot “buffer zone” is constitutionally permissible. Rather, I am interested in what makes this case so difficult at its core. I address that issue after the jump, and also offer a basis for granting this kind of expression some public space that differs from many of the abstract principles usually cited.
October 30, 2007 at 3:50 pm
Posted in: First Amendment
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Law Talk: Oman on Civil Cases in Church Courts
posted by Nate Oman
Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week’s episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I’ve written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.
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.
October 30, 2007 at 12:00 pm
Posted in: History of Law, Law and Humanities, Law Talk, Religion
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Medical Tourism Myopia
posted by Frank Pasquale
The political blogosphere has recently seized on the topic of medical tourism. Andrew Sullivan believes that Britons seeking health care abroad prove the failure of “socialized medicine.” Ezra Klein compares America’s record:
America is actually driving the medical tourism industry that some Britons are taking advantage of. The growth of foreign treatment centers aren’t a result of the failings of the British health care system (of which there are many). They’re a result of the cost of American health care, and the huge numbers of sick individuals we price out. . . . The Brits also have a bad health care system, but theirs is, on the bright side, very, very cheap. Ours isn’t.
Whatever your political spin is, there’s no doubt that medical tourism is increasingly important. One of the best works I’ve found on the topic is Nathan Cortez’s Patients Without Borders. Toward the end of the piece, Cortez frames the matter well:
[M]edical tourism foreshadows the diverse set of issues we will have to confront as health care continues to globalize. How will globalization affect health care costs, quality, and access? Where does the free market fail? When is government regulation futile? How do governments retain the jurisdiction to respond to important legal and ethical questions? How can
multilateralism facilitate trade without eviscerating local authorities’ jurisdiction? How do patients, companies, and policymakers balance the risks?
As I prepare a paper for a Wisconsin conference on the internationalization of health care, I’m taking a global justice angle. I’m particularly interested in how American demand for discretionary procedures affects the health systems of other countries.
October 30, 2007 at 11:59 am
Posted in: Health Law
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Are Gambling NBA Referees More Like Speeding Motorists or Corporate Executives?
posted by Dave Hoffman
On the ‘Glom, Christine Hurt has posted When Everyone Breaks the Rules (NBA Style) . In it, she critiques David Stern’s decision not to punish the NBA referees, who collectively, it seems, have all violated the league’s anti-gambling rules in assorted ways. Christine seems to think the situation is sort of like the problem of under-enforced corporate law, a topic she has a new (terrific) piece about. Perhaps NBA referees ought to be subject to discretionary enforcement, targeted at the worst offenders or those who are (bad) norm entrepreneurs.
But there are times when a community’s lack of compliance with the law means it is a bad law – like speeding. Unfortunately, I can’t think of a particularly good principle to distinguish regimes that require more legal enforcement from those that require different laws. An efficiency analysis here would seem to be particularly unhelpful, because L&E is notably bad at telling us much about which acts should be criminalized. What do you think – should NBA refs be allowed to play in a home poker game?
October 30, 2007 at 11:44 am
Posted in: Corporate Law, Criminal Law, Economic Analysis of Law
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Solum on Originalism
posted by Daniel Solove
Over at Legal Theory Blog, Professor Larry Solum (Illinois) has a terrific post discussing a recent flurry of scholarly interest in originalist theories of constitutional interpretation. In his discussion, he has links to a number of important articles and blog posts on originalism: Brest, Powell, Scalia, Whittington, Balkin, Barnett, and Leiter. As Larry often says on his own blog: Highly recommended!
October 30, 2007 at 10:25 am
Posted in: Constitutional Law, Legal Theory
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The Market for Medicalization: Enhancing Evolution?
posted by Frank Pasquale
Many recent books are questioning the expansive trend toward “medicalizing” emotional responses that were once considered acceptable. I greatly enjoyed Christopher Lane’s Shyness: How a Normal Behavior Became a Sickness, and I’ve just started in on Peter Conrad’s The Medicalization of Society: On the Transformation of Human Conditions Into Treatable Disorders. Metapsychology has given a positive review to Horwitz and Wakefield’s The Loss of Sadness: How Psychiatry Transformed Normal Sorrrow into Depressive Disorder. The authors argue that “instances of what Freud called ‘ordinary human misery’ should not be confused with real mental disorder”–but there are many pressures toward treating them as such.
As the realm of “mental optimization” expands, I predict more employers will request (or demand) employees take certain drugs. For example, someone grieved by a loss might become much more productive if they can nip misery in the bud with the right intervention. Will such pill-taking ever become a bona fide occupational qualification? Are there cases where it might make sense?
October 29, 2007 at 11:14 am
Posted in: Health Law
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Law Teaching Interview Advice: How to Ace the Job Talk
posted by Daniel Solove
So you want to be a law professor, and you survived the dreaded AALS “meat market” in Washington, DC. You’re now sitting by the phone, waiting anxiously for a phone call for a second date. The phone rings . . . and you’ve got a callback! Now what?
I’ve previously provided advice on how to do well in your AALS interviews. But now you’re on to the next round. Callback interviews are designed to see if you’re the real deal or just a poser. They are a marathon of many short 30-minute interviews in various professors’ offices back-to-back for the entire day. It’s a very exhausting experience. But these interviews are not much different than those at the meat market.
The key part of the day is the job talk. This is where you give a brief lecture to the faculty and they grill you. The job talk is one of the most important factors in a candidate’s hiring. It begins with the candidate lecturing for about 20 to 30 minutes and is followed by about 30 minutes of Q&A. For better or for worse, the job talk is one of the most important factors in getting hired.
So how do you ace your job talk?
The first thing is to understand your audience. Here’s my perspective as a member of your audience. Your job talk is taking place during the middle of my day. I’m busy. I’ve got a ton of things to do, classes to teach, papers to work on, emails to respond to. I’m not coming in eager and excited to give my valuable hour to some unknown person plucked off the street after a 30-minute interview at the meat market. So you’ve got to work to get my interest and make that hour an interesting part of my day. That involves getting out your thesis quickly, making an interesting argument, and then having a good discussion with the faculty.
Sounds easy, right? You wouldn’t believe how many fail at doing these basic things. I’ve seen countless candidates crash and burn during their job talk. It’s like reading a Kafka novel — things start out bad, and then they get much worse, and then you die.
Here is what I’m looking for in a job talk:
1. Were you able to articulate a coherent thesis? Your talk must have a point, and the point of your talk should be stated towards the beginning.
2. Was the thesis of your talk original and not an obvious point? I should not be saying “duh” to myself throughout your talk.
3. Were you able to defend your thesis?
4. Did you recognize the arguments on the other side of your thesis?
5. Was your talk interesting and engaging?
6. Were you articulate and clear? If not, I might have doubts about the clarity of your thinking as well as about your ability to explain concepts to students in a class.
7. In the Q&A, did you respond well to the faculty’s questions?
8. If a question posed a severe challenge to your thesis, were you prepared to address it?
9. Did you demonstrate adequate command of your topic? I expect you to be familiar with the literature and cases on your topic.
Here are some tips:
1. Have one clear central point. Many job talks ramble on and on without much of a point. Some fail because the underlying project lacks a point, but others fail because the candidate just hasn’t realized one of the most important keys to presenting a paper: You can only get across a very small fraction of a paper in about 20-30 minutes. Oral presentations are a remarkably inefficient way of communicating information. So you don’t have the luxury of making several different points, exploring all the manifold nuances of a topic, and so on. You must isolate the key point, and provide the basic skeletal structure of your argument. Basically, state your thesis, explain it, and justify it. Don’t argue all the finer points. You don’t have time.
2. Choose a topic that many people on the faculty can talk about. The most important part of the job talk is the Q&A, where the faculty gets to see how well you think on your feet and respond to difficult questioning. Unfortunately, some job talks are doomed because they are on esoteric topics that hardly any of the faculty can discuss. If the faculty can’t debate you or engage with your topic, it is hard to have the kind of vigorous and interesting Q&A that is needed to show off your response skills. You need to leave the faculty with something it can discuss with you.
October 29, 2007 at 12:07 am
Posted in: Law School (Hiring & Laterals)
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A Candidate’s Perspective on the Meat Market
posted by Dave Hoffman
A candidate for a job at the AALS hiring conference (a.k.a. “the meat market”) has written me the following reflection on the process this year. For the time being s/he wants to remain anonymous. I thought it worth sharing with you. I haven’t edited it at all, except for inserting the appropriate hyperlinks, and adding the relevant picture.
Many people give advice about what you need to do to prepare for the AALS Faculty Recruitment Conference. But most of those folks are already established professors. I just returned from the conference and I want to provide some general thoughts about what made my time at the conference happier and more productive for me. I know it is too late for this crop of young candidates, but maybe it will help on your callbacks or future generations of aspiring professors.
- Think of it as the “meet” market, not the “meat” market. The interviews are an opportunity to meet a bunch of folks who might one day be your colleagues, collaborators, and friends, whether you end up at their school or not. Likewise, this is an opportunity to meet your cohort of young profs. Take advantage of that time and remember that life is long and you may run into these folks again at future conferences once you are on the other side of the hiring process.
- Fight your baser fears and push yourself to be social. I – like many who are hoping to enter (or are already in) the academy – am not particularly comfortable at cocktail parties. Fight through your discomfort. Especially if you don’t know anyone at the conference, go to the Friday night party. Sidle up to some candidate you’ve never met and introduce yourself. As mentioned above, these folks might be your peers next year, but more immediately you will run into some of these people throughout the weekend. You will be more comfortable, happier, and perform better in interviews if you see a friendly face and can commiserate about the process with someone else. Go to the cocktail party on Saturday night (unless you have plans with a school for dinner or drinks). Force yourself to talk to both candidates and recruiters. Of course it is natural to scan the room for folks that might directly help you. If you see them, force yourself to go talk to them. Even if it doesn’t help this year, it might help in the future.
- Practice random acts of kindness. The pressure during the conference can be staggering. The furtive glances at nametags, the awkward waits in long hallways outside doors, the shameful self evaluating and unseemly comparisons, and the desperate message checking all contribute to a diminished sense of well being during the weekend. You’ll be surprised how much better you will feel if you say a kind word to a stranger or hold open an elevator door even if you are in a hurry. I tried to say at least one nice thing to a stranger in every elevator ride up to an interview. I immediately felt better about the process and myself.
- Think positive thoughts before each interview. Before each interview I tried to find a small quiet place to myself to reflect on the upcoming interview, usually a stairwell near the interview room. While there, I tried to imagine my best-possible-self participating in the interview. My mantra: you deserve to be there; you are as smart, charming, and witty; you have something to say that they want to hear; you can sell sand in the Sahara; you are confident, but not arrogant. It may seem hokey but it brings up your level of confidence and performance.
- Bring energy and humor into the interview process. The other side of the table may be less stressful, but it is no less tiring. Be empathetic toward your inquisitors and help them out. Try to keep them entertained. Show some energy and passion for your projects and for teaching. They want to know what you will be like in the classroom (even if they only want you to publish). If you can’t be passionate about your own work, can you bring passion to teaching the cannon? Don’t be afraid to be funny. You can lighten the mood.
- Follow the other advice given already. Show up prepared and with a gameplan. Have a macro and micro strategy. Your macro strategy is about you. Know your research backward and forward. Anticipate the questions about your research and think through answers. Be able to speak in 1 – 3 minute sound bites about your paper and your research agenda. On that note, make sure you have a research agenda to offer. Your micro strategy involves each particular school. Be able to answer basic questions like: Why “x” location? Why “y” school? What do you want to teach? Why academia? These answers might change depending on the school with which you are interviewing. Think about the school’s hiring needs, its philosophy toward teaching, and any connection you might have to the area. Don’t be afraid to be a little shameless in modifying your answers for each school. If it helps, think of it as alternative pleading. “I would really like to end up in Southern California because we have family there, alternatively we would really like to end up in Chicago because we love urban living and there are lots of opportunities for my partner’s career there.”
- Don’t be intimidated by other folks that are there. There may be someone prettier than you at the ball, but don’t let that phase you. You only need to find that one special someone to take you home at the end of the night.
(Image Source: Wikicommons)
October 28, 2007 at 4:45 pm
Posted in: Law School (Hiring & Laterals)
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Not Everyone Wants to Play Google’s Library Game
posted by Deven Desai
It seems like Google is unstoppable. Frank’s recent post about Google and his talk on the subject reminds that Google is everywhere. Dan’s new book is necessary in part because of Google and other search engines. Google has even popped up offline. Rumors of taking on phone technology abound. And as many know Google has set its sights on books too. As Frank noted Siva Vaidhyanathan among others has questioned Google’s control of information. Vaidhyanathan’s paper, The Googlization of Everything and. the Future of Copyright, which appeared in the U.C. Davis Law Review, offers that in the book realm Google’s actions may trigger a large step backwards because of the nature of fair use.
As Vaidhyanathan admits he only highlights the danger of one court or Congress listening to copyright corporations and restricting the potential of information sharing that the Internet and the book project offers. That alone merits consideration. I do think, however, the paper makes some overstatements about search issues and “stable texts like books.” He argues that Google’s search in books lacks neutrality, and its utility alone will not save it because:
It is hardly an effective or comprehensive research tool. It generates too many ridiculous results for simple searches. It cannot screen out bad results very well. And Google offers no simple information-seeking training to its customers. Searching the text of books is rarely a better way to search than searching among books. Books are discreet documents that operate with internal cohesion more than external linkages.
This idea seems to suggest that those who use Westlaw or Lexis cannot find material well. I think Google supports some level of Boolean searches and Google could easily add subject matter indices to mimic library catalogs. In short, focusing on small issues such as improving the utility of the search detracts from the bigger point. Google can fix or enhance the searches. The improvements will not necessarily stop one of the key points made in the paper. True believer arrogance in the face of laws that see the world in quite a different way can lead to bigger problems. Here Google’s contract which gives libraries an electronic copy in return for participation runs into copyright law for the law is not sure what to do with such copying other than say it is not allowed.
Thus even though some libraries reject Google’s onerous terms, Google’s acts may foment a poorly written ruling or law that hinders other movements which seek to extend access to knowledge. For those interested in one such movement check out the Open Content Alliance.
Cross-posted at Madisonian
October 28, 2007 at 3:37 pm
Posted in: Cyberlaw, Google & Search Engines, Intellectual Property
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Responses: The Disability Integration Presumption
posted by University of Pennsylvania Law Review
PENNumbra‘s featured works of October are now available at www.pennumbra.com.
As the legal wrangling over the cost of disability education rages on, Professors Samuel R. Bagenstos and Mark C. Weber each provide unique responses to Professor Ruth Colker’s 2006 article, The Disability Integration Presumption: Thirty Years Later.
Professor Bagenstos writes in Abolish the Integration Presumption? Not Yet, that while Professor Colker’s arguments are compelling, “[h]er article fails to establish that the IDEA’s individualized integration presumption imposes significant costs, and . . . downplay[s] significant benefits of that presumption.” He concludes that the “supposed failure[s] of integration . . . reflect [more on] the education system’s refusal to provide true integration” than on the presumption’s validity.
Professor Weber, in A Nuanced Approach to the Disability Integration Presumption, applauds Professor Colker for attempting to look at the integration presumption in a new way, but worries that her stance on the presumption is misplaced. Rather than abandoning the presumption, Professor Weber argues that integration can work well as long as educators focus on “which services and protections are being offered to educate a child within general education. . . . The way to equality is to provide extra services, technology, and accommodations in regular classes so that the children with disabilities do not fall behind.”
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.
October 27, 2007 at 2:31 pm
Posted in: Law Rev (Penn), Law Rev Forum
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Dancing in the Stacks: Could a Law School Be Like This?
posted by Jeffrey Harrison
This is adapted from an earlier post on Moneylaw and is my swan song Concurring Opinions post. Thanks for having me. I have enjoyed the discussions. After complaining for a month about law schools, law faculties and administrators, here is my idea of a great law school. You might score your own school to see where it stands.
1. Hiring is designed to create an intellectual and philosophical balance so faculty can debate and hone their ideas about important issues. (At many schools, intellectual diversity is threatening.)
2. In hiring, performance, diversity, and energy are valued over credentials.(Most schools place high value on credentials even though they are as reliable as cubic zirconium as an indicator of value.)
3. Discussion can be had about everything – class, race, sexuality, the Middle East – without the discussion becoming personal, or people pouting, or stomping out of the room. (At most schools these matters are taboo because of faint hearts, fears of being labeled, and wanting to avoid complex issues.)
4. There is real collegiality as opposed to facial collegiality. (At many schools the appearance of being “nice” is sufficient and can be used to mask a great deal of self-dealing, free riding, externality production, and closed-door mischief.)
5. The administration and faculty announce and internalize goals and stress accountability. (At some schools, the administration takes whatever happens and spins it in order to claim success.)
6. There is an on-going effort to match the efforts – courses offered, degrees offered, foreign and domestic programs — of the school with the needs and expectations stakeholders. (At other schools, there is no on-going assessment if someone’s turf would be disturbed.)
7. The faculty abide by the real NYT rule: Don’t do anything you would not want reported on in the NYT. (Many faculty, including some on my faculty, go by the “other” NYT rule: Don’t put anything in writing that you would not want reported in the Times.)
8. The ideal curriculum is planned and professors make sure it is offered even if it means extra effort. (At some schools, teachers are asked what they are “willing” to teach and when and that is what is offered.)
9. The dean has principals and principles. He or she considers the best interests of students and shareholders and does not comprise with self-interested faculty to achieve those ends. (At some law schools, deaning means displeasing the fewest number of faculty.) (Remember the old saying “It’s not a revolution if you ask permission.” How about, “It’s not deaning if you ask permission.”)
10. There is a sense movement, excitement, intellectual ferment, and even some dancing Monday – Friday throughout faculty offices. (Some schools have gone to a Tues – Thurs schedule, faculty are elsewhere, or suffer from the institutional Valium effect.)
October 27, 2007 at 11:06 am
Posted in: Uncategorized
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Genarlow Wilson and the 8th Amendment
posted by Laura Appleman
As has been widely reported today, Genarlow Wilson, the 17-year old black male who was sentenced to 10 years for aggravated child molestation after having consensual oral sex with a 15-year old, was freed on an 8th Amendment claim: cruel and unusual punishment.
To those of us immersed in the sentencing world, this is another interesting example of how the understanding of “cruel and unusual punishment” has expanded in the past several years. As every defense attorney knows, 8th Amendment claims are usually a last-ditch effort, since they are so unlikely to be successful. And yet the last five years have illustrated quite the opposite.
October 26, 2007 at 1:47 pm
Posted in: Criminal Law
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False Cries of Foul? U.S. Law Firms in London May Have to Report Financials
posted by Deven Desai
As LLPs, law firms in the U.S. do not have to share financials with the public. Maybe they should. For example, it appears that law firms that use a business form similar to LLPs but are based in the U.K. must disclose their financials. U.S.-based LLPs that have offices in London do not, yet. A proposal under consideration would change this rule so that the U.S.-based LLPs would have to disclose their financials. That possibility met resistance in 2001 and seems to be upsetting some firms again.
Law firms make an incredible amount of money and have enviable margins. On one hand, firms seem to love being at the top of the AmLaw lists and being the highest revenue firm or highest profit per partner firm. So now when a firm like Reed Smith protests the possibility of having to disclose the numbers there is some irony. Some of this information is available through the AmLaw rankings. For 2006, Reed Smith comes in at 31, based on its 2005 gross revenue of $562,500,000. If the desire is to remain so secret — in the firm’s words “we would prefer to keep our financials private. Many of our U.S. counterparts would feel this way too.” — then how is it that AmLaw has these figures? Granted it is not the full financials but someone is likely giving the information to Law.com and others. Want to know profits per partner for the firm in 2005? Read below the fold. Hint: The firm provided the numbers.
October 26, 2007 at 12:54 pm
Posted in: Law Practice
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Google’s Principles
posted by Frank Pasquale
I’ll be presenting at the University of Chicago Legal Forum symposium today on “Internet Nondiscrimination Principles.” Readers of the blog will be familiar with my concerns about Google; here’s a precis for today’s talk:
Google’s advocacy for net neutrality has focused policymakers on the dangers of permitting a few dominant carriers to act as unaccountable bottlenecks controlling the flow of information. However, Google itself may soon pose more of a threat of “bottlenecking” than the carriers it is calling to account. In certain cases, leading search engines need to be held accountable for the way they collect, order, and present information. Nondiscrimination principles first proposed for carriers may also inspire fruitful regulation of search engines.
As Greg Lastowka has recently observed, “fortunes are won and lost based on Google’s results pages, including the fortunes of Google itself.” I look forward to discussing the future of search engines with panelists and others at the U. Chi. law school. I’m happy to send my slides to anyone interested in the topic.
October 26, 2007 at 9:15 am
Posted in: Google & Search Engines
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The path to academia — is practical experience disqualifying?
posted by Jennifer Collins
Over at the Volokh Conspiracy, Orin Kerr writes about an interesting talk recently given by Harvard Law professor Darryl Levinson to aspiring law professors. Like Orin, I was particularly struck by the following remarks from the article: “practical legal experience is not a good predictor of scholarly ability, and, Levinson noted, ‘is pretty nearly disqualifying.’ Levinson pointed out that today’s younger professors have no significant practical experience, and that if they tried to become involved in the world, ‘the world would probably recoil in horror.’” Since today is the start of the infamous meat market, I don’t want all those aspiring law professors with practical experience to be discouraged! First, I think that many, although certainly not all, younger professors do have significant practice experience. I worked for a long time as both a defense attorney and as a prosecutor, and I know that both my teaching and my scholarship are far richer for the experience. At least in the criminal field, I can think of numerous colleagues who have experience on either the prosecution or the defense side (or both). Second, if we are indeed moving to a world where new professors do not have any practical experience, I think that would be a tremendous loss for students, for law schools, and for the profession. We are after all training most students to be lawyers, not academics. I wish that we could move away from this view that having practice experience, in other words being a good attorney, and being a great scholar are incompatible. I believe that it is eminently possible to be both.
October 26, 2007 at 8:49 am
Posted in: Uncategorized
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