Archive for October, 2007
Death by Bowles v. Russell?
posted by Frank Pasquale
The Supreme Court’s 5-4 decision in Bowles v. Russell “dismiss[ed] the appeal of a convicted murderer because it had been filed two days late, even though it had met a separate deadline set by the trial judge.” The NYT now reports on a prisoner who has been executed due to his attorneys’ barely missing a deadline:
The presiding judge of the Texas Court of Criminal Appeals is the target of a rising national outcry a month after turning away the last appeal of a death row inmate because the rushed filing was delayed past the court’s 5 p.m. closing time. The inmate, Michael Richard, was then executed for a 1986 sexual assault and murder — the last person to die in Texas while the United States Supreme Court reviews the constitutionality of lethal injection.
The judge, Sharon Keller, has said she did not know that Mr. Richard’s defense lawyers in Houston were having computer problems when they asked the court for 20 more minutes to deliver their final state appeal to Austin hours before the scheduled execution on Sept. 25.
I suppose one question raised here is: did Judge Keller have a choice? Was she forced by Bowles not to extend the deadline? Justice Thomas’s opinion in Bowles stated that the “taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’” But Justice Souter’s dissent suggests there is ample precedent out there to make the majority’s view the “outlier;” he states that the majority “suddenly restore[d] [the] indiscriminate use of the ‘mandatory and jurisdictional’ label to good law in the face of three unanimous repudiations of [this] error.” It’s not my area, but I’d be fascinated to hear what others think.
Hat Tip: Doug Berman.
October 25, 2007 at 6:18 pm
Posted in: Criminal Law
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Gun control and the District of Columbia
posted by Jennifer Collins
The Supreme Court should be deciding in the next couple of weeks whether to grant cert in the case challenging the District of Columbia’s law in essence banning residents from possessing handguns. (Michael O’Shea has done an admirable job over at Prawfs collecting various materials related to the cert petition). As a former assistant U.S. attorney in D.C., I’ve been following the case with interest, and I do expect that the Court will grant cert. I think it’s worth acknowledging the primary functions of the law as it’s used by prosecutors in DC: the gun ban is both a preventive detention statute and an intelligence-gathering tool. At one time when I was a prosecutor, we were prohibited from extending a plea offer in gun cases unless the defendant agreed to come into the office (with his attorney, of course) and be “debriefed” about his knowledge of criminal activity in the city. The statute was also a mechanism for locking up individuals perceived as violent, but against whom other cases could not be brought for whatever reason. It’s pretty simple to prove beyond a reasonable doubt that an individual was in possession of a gun without a license and a lot tougher to prove that he committed a violent crime. These functions may not be relevant to the question whether the statute is constitutional, but it’s worth acknowledging that invalidating the gun ban will surely have a tremendous impact on crime-fighting in the District.
October 25, 2007 at 12:17 pm
Posted in: Uncategorized
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The Youngstown Question and the Presidential Contest
posted by Timothy Zick
As the confirmation hearings of Michael Mukasey demonstrate, perhaps the most pressing concern in the upcoming presidential election is the shape the office itself will assume in January, 2009. Mukasey has created controversy by professing to be unclear with regard to whether waterboarding is “torture” and, more importantly, suggesting that the president has the constitutional power (in national security contexts) to act contrary to duly enacted federal law. As to the latter position, Youngstown, its progeny, and most of our constitutional tradition strongly indicate otherwise. Because no question is more fundamental or important to the office, we ought to be asking the presidential candidates the Youngstown question too. Perhaps more than any other in recent history, this election raises questions regarding not only what kind of president the candidates will be, but more fundamentally what kind of presidency they envision.
A few of the candidates have addressed that question, or provided substantial hints. For example, Hillary Clinton recently pledged to “relinquish” some of the executive powers she says the Bush Administration has illegitimately claimed and exercised. If the claim is that President Bush has exercised power he does not have — say, the power to ignore federal statutes — then “relinquish” does not seem the appropriate term. One cannot “relinquish” what one never possessed. Perhaps not surprisingly, candidate Clinton did not provide specific examples of powers President Clinton would not exercise. We also ought to keep in mind that presidents have made similar pledges in the past, only to renege once in office. Among the Republican candidates, we are gaining a clearer picture of Rudy Giuliani’s vision of the presidency. Not surprisingly, candidate Giuliani offers a very muscular conception of executive power. He has reportedly surrounded himself with hawkish advisors with regard to foreign policy. Striking Iran, he says, is a more timely concern than many Democracts will concede. More specifically, like Mukasey, Giuliani has said he does not know whether waterboarding is “torture.” He has also derided characterizations of sleep deprivation as torture as “plain silly.” He favors “aggressive” questioning of suspected terrorirsts. These answers ought to raise even greater concern than those recently given by Judge Mukasey; after all, Mr. Giuliani seeks all of the executive power the Constitution vests in the presidency. In any event, it seems a very safe bet that President Giuliani would not relinquish any presidential authority; indeed he may even seek to enhance the powers of the office.
Admittedly, it is not easy to work Youngstown (or any other constitutional precedent, save perhaps Roe) into presidential debates. The scope of presidential power generally is too nuanced for sound bites, zingers, and applause lines. But every candidate ought to at least be asked whether he or she believes the president is, under any circumstance, above the law. If so, he or she ought to be asked to provide specifics, using current examples (wiretapping, detention, “enhanced interrogation,” etc.) as necessary. If there is no clear answer to that question, then it would seem our democracy is in serious trouble. As Giuliani himself once wrote: “Elections are necessary but not sufficient to establish genuine democracy. Aspiring dictators sometimes win elections, and elected leaders sometimes govern badly and threaten their neighbors.”
October 25, 2007 at 11:01 am
Posted in: Politics
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Suing the EPA to Act
posted by Deven Desai
Several states including California and a block of states in the Northeast are preparing to sue the EPA to act. The issue is the EPA’s delay in granting waivers so that states can use their power under the Clean Air Act to regulate automobile emissions. California has been waiting two years for the waiver. The idea is to ensure that the agency acts, but it appears that the agency could rule that the state action is not authorized. As David Doniger, an attorney for the National Resources Defense Council, put it “The real issue is, will [the EPA’s administrator] block the states or let the states go forward?” In addition, a group of 10 states are issuing regulations regarding power plants under a Regional Greenhouse Gas Initiative. New York is part of that group. Its regulations are to take effect next year. That strategy helps wind and solar power producers and will make it harder for coal-based producers. The Times article noted that the largest investor-owned energy producer in New York backs the idea and does not operate coal plants in the state. In contrast the Independent Power Producers of New York, a trade group that includes coal-based power producers, opposes the state regulations. This quote from the group’s CEO is interesting for its use of fear and the idea that some other state would gain from the regulations.
“We don’t want to put more burden on the rate payers of New York, and the last thing I would think this governor wants to do is send the message that investment should go in other states,” said Gavin J. Donohue, the group’s chief executive. “You can build plants in other states and send the electricity back into New York.”
If one wanted to study a simple way to try and hit the people this quote offers a decent, albeit transparent, example. First claim that costs will go up for individuals. That may be true, but the long-term as opposed to short-term cost question is lost in this framing not to mention that these are elected officials who just might have accounted for the perception of near-term rate increases. Second, indicate that investment will flee. Sure, coal-based and other methods of power production that generate greenhouse gases may leave. Then again, those companies interested in areas favorable to other energy production may rush in and invest more. Furthermore, they will have to build new plants just to be able to offer their energy; that may require investment. Third, suggest that one’s business is impervious because there is always a market and others will take in the producers only to allow them to sell back to New York. This last point raises an issue of whether some states lack the ability, will, or interest to stop the coal producers and thus they will allow the energy producers to generate negative effects in any event. If so, then the argument seems to be let us produce in your state and at least get the investment benefit, because we will pollute elsewhere, further global warming, and still sell our energy so nyah (imagine a tongue sticking out here). It is unlikely that the last analysis is exactly what the group wanted to say, but it seems to be a possible interpretation.
Last, I am not an environmental law person so any thoughts about the issue from the regulation to the implications of suing the EPA to act to the negative externality issues in this context are appreciated.
Hat Tip: Slashdot
(Image Source: Wikicommons)
October 24, 2007 at 11:20 pm
Posted in: Environmental Law
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Belle Lettre on The Future of Reputation
posted by Daniel Solove
Belle Lettre, the pseudonymous blogger at Law & Letters, has posted a very thoughtful and interesting review of my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. It is unlike most reviews that typically summarize ideas in the book and quickly react; Belle Lettre has really engaged the issues and arguments of the book at an intellectual and personal level. She also has interesting musings about blogging pseudonymously, shaming, privacy, sharing personal information, and more. From the review:
One of Solove’s take-away points is that privacy is fluid: we might violate our own privacy all the time to our friends, but we are appalled when strangers know our business. Privacy is not rigid, it is fluid–but it has not altogether disappeared either. I would call it “bounded,” that we have a certain expectation of privacy between our friends, a different type amongst our colleagues, and limited to our geographic area. The Internet takes this boundedness and destroys the borders. On the other hand, the internet expands the bounds of “public concern”—if it reaches the Internet, everyone believes they have a right to know, a stake in their interest, and a freedom to opine, snark, shame. Boundaries are shattered and expanded, but nothing is contracted. The context is everything, the readership entirely determinative of interpretation: but even though privacy has its bounds, they mean almost nothing on the Internet. Before, public stonings occurred in the town square, but that is an example of a bounded community of norm-enforcement: four corners, only a certain number of people, and only those with an actual interest-stake participated. Not so, now, with the vast blogospheric public square. The one to cast the first stone may not be the one with the highest interest-stake, but rather the one with the most vitriol with the biggest voice.
October 24, 2007 at 12:32 pm
Posted in: Articles and Books, Book Reviews, Privacy, Privacy (Gossip & Shaming)
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God and Copyright
posted by Dave Hoffman
Godtube, Youtube for religious believers, was the fastest growing web property in the month of August. Like Youtube before it, Godtube seems infected by IP issues, born of the laity’s evident lack of familiarity with the reach of copyright law. It seems like the site would provide an interesting source of hypotheticals for a class that looked at the relationship between free speech and copyright law – here, with an establishment twist. Many of the top viewed videos on the site are parodies of well-known commercial properties, and others lift such properties intact, presumably ignoring the site’s detailed copyright policy. There is even a corporate angle – if Big Jump Media, Godtube’s corporate owner, went public, would this mission statement pose shareholder wealth maximization problems?
(Image Source: A page from the Concordia discordantium canonum – Canon Law – through Wikicommons.)
October 24, 2007 at 10:13 am
Posted in: Intellectual Property
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Eugenics Problems, Left and Right
posted by Frank Pasquale
Michael Gerson has an interesting editorial in the Washington Post on the Eugenics Temptation–of the left. He quotes the following statement of James Watson on embryo selection:
“If you could find the gene which determines sexuality and a woman decides she doesn’t want a homosexual child, well, let her.” In the same interview, [Watson] said, “We already accept that most couples don’t want a Down child. You would have to be crazy to say you wanted one, because that child has no future.”
Gerson then quotes Yuval Levin on a tension within liberalism that I’ve noted on this blog–between egalitarianism and libertarianism:
Science looks at human beings in their animal aspects. As animals, we are not always equal. It is precisely in the ways we are not simply animals that we are equal. So science, left to itself, poses a serious challenge to egalitarianism. The left . . . .finds itself increasingly disarmed against this challenge, as it grows increasingly uncomfortable with the necessarily transcendent basis of human equality. Part of the case for egalitarianism relies on the assertion of something beyond our animal nature crudely understood, and of a standard science alone will not provide. Defending equality requires tools the left used to possess but seems to have less and less of.
Gerson, whom David Frum “ranks among the most brilliant and most influential presidential speechwriters in decades,” has put his finger on what is probably the most dangerous tension in “left” ideology today. Positional arms races for designer babies dovetail with an ethos that says that choice in reproductive matters must be absolute. As I stated five years ago in an article, egalitarian principles should check this tide.
October 24, 2007 at 9:59 am
Posted in: Family Law, Feminism and Gender, Privacy (Medical), Technology
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What Computers Can’t Do (and Google Should)
posted by Frank Pasquale
To what extent are Google’s unpaid results driven by algorithms, and to what extent do individuals make decisions about rankings? Though many suspected the latter, it’s been hard to prove it’s a regular occurrence. But Seth Finkelstein now believes a line has been crossed with Google’s latest efforts to control popular sites’ sale of links for cash:
[According to Danny Sullivan,] “Google stressed . . . that the current set of PageRank decreases is not assigned completely automatically; the majority of these decreases happened after a human review. That should help prevent false matches from happening so easily.”
I don’t want to create false incentives, and human review is good of course. Yet I can’t help thinking that we’ve now crossed a line here. Perhaps with the best of intentions, for the most worthy of reasons. But still, we’re now on the other side of some divide.
Now, there really is someone sitting in a room thinking along the lines of : “Hmm, the algorithm says you have Pagerank 9, but looking at your site, you’re using your pagerank-powers for link-profit, so let’s turn it down a few notches, perhaps to Pagerank 7, so it’s not quite as attractive. If in the future you prove to be a more moral vessel of our power, we may restore you to full strength.”
That’s a change. Good or bad, it’s different from what’s been the case before.
I have a few thoughts on the change, and on some parallel controversies, below the fold.
October 24, 2007 at 9:21 am
Posted in: Google & Search Engines
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Debate: Can Handguns Be Effectively Regulated?
posted by University of Pennsylvania Law Review
PENNumbra’s featured works of October are now available at www.pennumbra.com.
Recent reports on crime statistics published by the FBI show that violent crime has increased for the second straight year across the nation. In particular, the FBI’s reports demonstrate that in major metropolitan areas, such as Philadelphia, homicides have increased by 6.7%.
In the midst of this upsurge in violent crime, Professors James B. Jacobs, of New York University, and David Kairys, of Temple University, reengage with America’s long-running debate over the effectiveness of gun (specifically handgun) control regulation, in their debate, Can Handguns Be Effectively Regulated?
Both Professor Jacobs and Professor Kairys agree that the debate on handgun control “at its core is [related to] a personal, cultural, and political identification of guns with personal self-worth . . . , freedom, liberty, and . . . God and country.” Whereas Professor Jacobs accepts this as a political reality and uses it as an anchor from which to engage in this discussion, Professor Kairys steadfastly disagrees: “The best hope for emerging from our disgraceful state of denial is to respectfully engage and challenge the cultural and political identification of guns with our nation’s highest ideals and the deadly legacy of that identification as it is currently conceived.”
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 24, 2007 at 2:30 am
Posted in: Law Rev (Penn), Law Rev Forum
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More Firms Cut or Change Billable Hours for First Year Associates
posted by Deven Desai
Dan has posted thoughts on the problems of billable hours, Frank noted students trying to impact the way firms behave, and I have suggested that one’s firm plan to cut first year associate billables completely is one to watch. Apparently a shift is indeed occurring. In the past month one firm, Strasburger & Price of Dallas, Texas, has decided to modify the first billable requirement and others are trying changes as well. Strasburger has cut billables to 1,600 from 1,920 but “will require incoming associates to spend 550 hours shadowing senior attorney mentors, participating in training sessions and working on pro bono projects.” So the total is now 2,150 which may be less than the 1,920 assuming that the previous figure expected associates to shadow, train, and perform pro bono on top of that base. A couple of firms have decided to offer a track with less hours and less pay. Whether choosing the fewer hours track allows one, at least as policy, to be on the same partner track as others is unclear.
Perhaps the most radical move is from Howrey which is trying to implement a pure performance-based model. In addition to hours, the factors to be examined will include “writing, deposition, trial practice, and client presentation skills.” Although a partner is supposed supervise associates and make sure they have opportunities for such experiences, this model seems likely to run into the problems of that the reduced billable strategies seek to address. Partners simply become too busy to oversee such programs. Another problem is that this group will come from a system where lack of training (or training by fire) was the norm so a reference to how or why they should focus on such duties could be missing. One more question is what happens when an associate is paired with a poor match? Like assigned advisors in school, those situations can be awful. The mentor may be bad at the mentoring or may not want to do it. The two participants may just not have personalities that work well together.
In any event, for those of you interviewing as students or employers it may be that the legal profession is experiencing a change. Insofar as a new law-school graduate can find a position that offers more chances to learn and experience the complexities of the practice of law with less pay, take that job. You will probably be happier. You may even work more just because you like the work. And you will gain skills if not wisdom that will open career opportunities both within and outside the firm where you began.
October 23, 2007 at 5:53 pm
Posted in: Law Practice
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Privacy’s Other Path: Recovering the Law of Confidentiality
posted by Neil Richards
Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:
The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.
October 23, 2007 at 3:56 pm
Posted in: Articles and Books, First Amendment, History of Law, International & Comparative Law, Law School (Scholarship), Legal Theory, Media Law, Privacy, Tort Law
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The Noose
posted by Timothy Zick
That old instrument of death the noose has been much in the news of late. Saddam Hussein and his henchmen have gone to the gallows. Clarence Thomas continues to rail against his “high-tech lynching” at the hands of the Senate Judiciary Committee. And in the past few months, actual nooses have been found hanging in a variety of places — at high schools and universities, in workplaces and police stations, from the backs of pickup trucks, and near Ground Zero in New York City. Many have surmised that the appearance of these nooses is related to the controversy sparked in Jena, Louisiana when white students hung nooses from a tree near a public school. What we have is probably some combination of disgruntled students, cowardly racists, and “copycats.” Or perhaps, as Peter Applebome of the New York Times suggested, “maybe it’s just the distorting mirror of the never-ending media cavalcade, where any moron with a Sharpie and a length of cord from Home Depot can make a statement heard round the world.” [The noose is not the only symbol of hate making a comeback. The swastika has been showing up with increasing frequency in some communities; it has been spotted at synagogues and even carved into a crop circle in New Jersey].
Whatever the case, the seeming resurgence of the noose is a disturbing development. Its intentional use as a symbol of racial hatred and terror is of course utterly comtemptible. There have always been, and likely always will be, those who will make such cowardly gestures in an effort to intimidate. More disturbing on some level is the fact that there appear to be some (perhaps many) people who are either not aware of the noose’s disgraceful history, or who may believe that being forced to acknowledge that experience forces political correctness upon them. Some of the co-workers involved in the incidents noted above seemed to think that hanging a noose was a “joke.” Others have suggested that perhaps the media is hyping noose hangings in an effort to shock readers into caring about race. After all, as Alex S. Jones, director of the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard, is quoted in the New York Times saying, ”This is comparable to name calling” . . . ”It’s important to look at what it means and also what it doesn’t mean.”
We certainly ought to consider what hanging a noose signifies. I suggested in a paper that ethnographic methods may be useful in assessing the meaning of symbols like the confederate flag and symbolic acts like cross burning. Anyone who doubts the enduring and powerful hatred and terror associated with this symbol (and who cannot be bothered to read one of many excellent accounts of the Jim Crow South) should at least peruse Without Sanctuary: Lynching Photography in America (2000), a book I stumbled upon years ago and have never forgotten. Of course, the noose, like other symbols, is polysemous. The context of the display matters. There are certain contexts — historical exhibits on Jim Crow violence or the death penalty, tributes to the Wild West, and perhaps even a celebration of Halloween fright — in which the symbol is intended to convey some non-threatening meaning. Even so, hangers of nooses — in particular those who live in diverse neighborhoods or work in diverse environments — ought to understand how this symbol is interpreted by many, if not most, African-Americans. Those noose-hangers who are fully aware of and even embrace the terrorism of the symbol should not count on any First Amendment protection for their “message.” Hanging a noose with the specific intent to intimidate is a true threat. What to do about the deep-seated undercurrent of racism that the noose’s resurgence seems to signify is a much more complicated question — and not, as our history demonstrates, one that will be resolved solely by passing hate crimes laws.
October 23, 2007 at 3:00 pm
Posted in: Race
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Crossing Lines
posted by Frank Pasquale
In cyberlaw, we are repeatedly reassured by leading companies that certain suspect actions just won’t happen because they don’t make economic sense. For example, opponents of net non-discrimination principles say that carriers have an economic incentive to maximize the value of that network, so they won’t discriminate against particular applications within it. But this assumption is now being challenged. . . . and we are seeing cases where a carrier may not merely discriminate against certain applications, but also conceal the fact that it is doing so:
Comcast is pretending to be part of online conversations in order to frustrate users who want to use particular online applications. This happens all the time in the name of “traffic shaping” — it’s the kind of thing that China does to interfere with internet use. What’s different and important about today’s story is that people have carefully experimented. We can now understand exactly what Comcast is doing.
More after the jump . . .
October 23, 2007 at 12:58 pm
Posted in: Cyberlaw, Media Law
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Law Porn and Spending the Money of Others
posted by Jeffrey Harrison
When a public law school distributes law porn, I assume the logic goes like this. Advertising leads to a better ranking that leads to more revenue that leads to a better experience for the students that leads to a higher payoff on the public investment made by the state. Think of how tenuous the connections are. Has any school moved up by virtue of better advertising or lost ground due to its absence? Has the movement of a slot or two increased donations? Have those donations been put to good use in order to increase the return to the public investment in legal education – whatever that is? I challenge any public school dean to prove that he or she has made an effort to track through this in even a semi rigorous way. Of course, in a rational and non shirking world, he or she would have before pissing away the money. The problem is that public law school deans and their faculties get to spend the money of others. Thus, it is doubtful they go through the calculations that they would go through with their own money. And it often means spending the money of others to preserve their own positions and status whether or not the stakeholders in the law school are better off. Of course, the spending the money of others problem extends way beyond the law porn. I wonder how many of these free spenders when it comes to the money of others then turn around and buy a car only after consulting Consumer Reports, make sure no frequent flier mile goes unused, select their credits cards on the basis of the best rebate, and check several places before buying anything that costs over $100.
October 23, 2007 at 12:47 pm
Posted in: Uncategorized
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Can Antitrust Accommodate Privacy Concerns?
posted by Frank Pasquale
The proposed Google/DoubleClick merger has provoked a complaint from EPIC and concern from many privacy advocates. EPIC claims that Google’s standard M.O. amounts to a “deceptive trade practice:”
Upon arriving at the Google homepage, a Google user is not informed of Google’s data collection practices until he or she clicks through four links. Most users will not reach this page. . . . Google collects user search terms in connection with his or her IP address without adequate notice to the user. Therefore, Google’s representations concerning its data retention practices were, and are, deceptive practices.
One key question raised by the proposed merger is whether privacy concerns like these can be folded into traditional antitrust analysis. Peter Swire argues that they can; he believes that “privacy harms reduce consumer welfare [and] lead to a reduction in the quality of a good or service.” I am broadly sympathetic with Swire’s aims, but I worry that contemporary antitrust doctrine is too etiolated to encompass his concerns.
October 23, 2007 at 11:00 am
Posted in: Antitrust, Culture, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Intellectual Property, Philosophy of Social Science, Privacy, Technology
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How to Get a Free Copy of The Future of Reputation
posted by Daniel Solove
Are you a blogger?
Are you interested in the issues of Internet gossip, rumor, privacy, anonymity, and free speech?
Are you interested in writing a short book review?
If so, I’m offering you a free review copy of my new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.
My book is about blogging, and I discuss how information spreads rapidly throughout the blogosphere – with both good and problematic effects. Obviously, I want to try to harness the good side of the blogosphere’s power, and that’s why I’m trying this experiment. The purpose of my book is to spark a discussion about the issues, and I cannot imagine a more appropriate way to do so than in the blogosphere.
If you’re interested in reviewing the book, please send me an email with your address, a brief description of your blog, information about your readership and visitor traffic, and a link to your blog.
If the response is overwhelming, I may not be able to send a book to everyone. My publisher only supplied me with a limited number of free review copies, so once they’re gone, you’re out of luck. Preference will be given based on the following factors: the promptness of your request, the relevance of the issues you blog about to the issues discussed in my book, and your visitor traffic. In other words, if you primarily blog about albino panda bears, or if you are the only reader of your blog, I won’t be too keen on depleting my precious stock of review copies for you.
Please note that I’m sending copies in exchange for your writing a review — so whether you like the book, love it, or hate it — I’d like you to air your candid thoughts on your blog.
So please email me a request soon, while supplies last!
October 23, 2007 at 12:15 am
Posted in: Articles and Books, Blogging, Book Reviews, Privacy, Privacy (Gossip & Shaming)
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Philadelphia Story: Is Appearance a Positional Good?
posted by Frank Pasquale
Travel & Leisure magazine recently released a survey concluding that “Philadelphia is home to the least attractive people in the United States.” Defending this cruel and implausible judgment, a survey organizer said “We were asking people to vote on attractiveness, not unattractiveness. Travel & Leisure editors believe there are a lot of attractive people in Philadelphia.”
Can someone rank-order attractiveness, and then plead that any unattractive results are mere byproducts of a contest that should only concentrate on winners? I’ll admit that my last post too easily assumed that appearance-improvement is likely to degenerate into positional competition. But I still think surveys like T&L’s inevitably result in losers as well as winners. And I think one needs to prove the widespreadness of a quite rarified aesthetic theory to convincingly demonstrate the opposite–even outside the confines of a ranking survey.
As I recall from an Alain de Botton book, Plato and Kant had divergent aesthetic theories. (And I hope the philosophers out there forgive me for citing a popularization I read years ago.) Kant suggested that a judgment of beauty had to participate both in the objective and the subjective:
Running through Kant’s various characterizations of judgments of beauty is a basic dichotomy between two apparently opposed sets of features. On the one hand, judgments of beauty are based on feeling, they do not depend on subsuming the object under a concept (in particular, the concept of an end which such an object is supposed to satisfy), and they cannot be proved. This combination of features seems to suggest that judgments of beauty should be assimilated to judgments of the agreeable. On the other hand, however, judgments of beauty are unlike judgments of the agreeable in not involving desire for the object; more importantly and centrally, they make a normative claim to everyone’s agreement. These features seem to suggest that they should be assimilated, instead, to objective cognitive judgments.
By contrast, Plato’s position was far more objective . . .
October 22, 2007 at 9:34 pm
Posted in: Law and Inequality
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The Supreme Court Bar
posted by Daniel Solove
Tony Mauro at Law.com has an interesting story (also reprinted at Yahoo! news) about the growing influence of the Supreme Court Bar — the group of lawyers who routinely argue cases before the Court:
For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild.
The Court’s docket continues to shrink. Yet dramatic new research by Georgetown University Law Center professor Richard Lazarus shows that more and more of the Court’s cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form. Last term, fully 44 percent of the nongovernment petitions that were granted review by the Court were filed by such veteran advocates. In 1980, that number was less than 6 percent.
The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. Chief Justice John Roberts Jr., after all, was once one of them, arguing 39 cases to the Court in his days as an appellate lawyer in the private and public sector. And Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the “inner circle” of the Supreme Court Bar. The clerks, who play a crucial role in screening incoming cases for their justices, often then go to work for these same firms, garnering hiring bonuses that this year have reached $250,000.
According to statistics compiled by Professor Richard Lazarus (Georgetown Univ. Law Center), the percentage of successful cert petitions filed by expert Supreme Court attorneys has gone up from 6% in 1980 to 44% in 2006. And the percentage of first-timers arguing before the Court has dropped from 76% to 52%, while the number of seasoned veterans (10 arguments or more) has risen from 3% to 26%.
October 22, 2007 at 7:21 pm
Posted in: Law Practice, Supreme Court
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Forthcoming Corporate Law Papers
posted by Dave Hoffman
Like Fred Tung, I spent the latter half of last week in NY, at Fordham’s Murphy Conference on Corporate Law. There were lots of great papers, but I wanted to focus readers on two of particular interest (at least for me):
- Frank Partnoy presented the co-authored Hedge Fund Activism, Corporate Governance, and Firm Performance, which examines the relationship between hedge fund announcements of activist investing strategies and near-term improvement in target companies’ share prices. The impressive thing about the project (apart from the unique database) was the finding of a strong relationship between the fund’s announced strategy and market reactions. At first, this didn’t click for me – why would investors bump a share price before they know if the intervention will be successful? But I guess that there is a signaling story here. Additionally, the paper seemed to uncover pre-announcement insider leaking by hedge fund managers, although Partnoy et al. did not press the point. This, in turn, suggests that hedge fund managers are seeking to maximize long-term (relational) over short-term gains. (Because, as one manager comments in the paper, if they were seeking short term gains, why would they dilute the value of the investment by leaking?).
- Jill Fisch presented her working paper, Cause for Concern: Causation and Federal Securities Fraud , about the relationship between Dura and a good understanding of how causation works in the ordinary tort regime. The paper is unfortunately not yet up on SSRN, but when it comes up, you should check out it. Fisch argues, in part, that we ought to measure securities damages by looking at the buying shareholder’s expectancy, instead of merely a company’s fraud-inflated value. This would clarify the waters of securities doctrine, which, post-Dura, seems to be an ungodly mess of mud. Maybe it is time for a consolidated securities court?
October 22, 2007 at 11:03 am
Posted in: Corporate Law
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Reactions to The Future of Reputation in the Blogosphere and Elsewhere
posted by Daniel Solove
Here are a few reviews and discussions of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet:
* Mark Williams reviews the book at MIT’s Technology Review
* John Tierney discusses the book and online gossip at Tierney Lab blog at the NY Times
* Kathleen Fitzpatrick has review at BarnesandNoble.com
* Taran Rampersad has this review at his blog, KnowProSE.com
* Frank Pasqaule reviews the book at Madisonian.net
* David Freeman has this review at Pajamas Media
October 22, 2007 at 10:37 am
Posted in: Articles and Books, Book Reviews, Privacy (Gossip & Shaming)
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