Archive for February, 2008
The Yale Law Journal Pocket Part: Antislavery Courts
posted by Yale Law Journal
This week, the Yale Law Journal Pocket Part published a companion issue to Professor Martinez’ Article, Antislavery Courts and the Dawn of International Human Rights Law. The Article discusses the complex history of international courts involved in the suppression of the transatlantic slave trade in the nineteenth century.
In this Pocket Part issue, Professor Martinez shares with readers digital images of some of the original court archives. Most of the courts’ decisions and a substantial part of the correspondence between the judges and the British government are summarized in the published British Parliamentary Papers. But the original, handwritten court records are housed at the United Kingdom National Archives outside London. These handwritten records give a more human sense of the courts’ operations, and their impact on individual lives.
February 25, 2008 at 10:23 pm
Posted in: Law Rev (Yale), Law Rev Forum
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Lessig: Not Going to Washington After All
posted by Dave Hoffman
He looked at the windmill, and decided to pass. See him explain it here:
Looks like there are only two law professors still in the running for federal elected office this year. (Corrections & additions welcome in the comments).
February 25, 2008 at 7:57 pm
Posted in: Politics
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What I Like About the New Battlestar Galactica
posted by Bruce Boyden
In honor of the BSG interviews that Dan, Dave, and Deven have posted below (which I hope to listen to soon), I thought I’d chime in with what I like about the show. I’m a big fan; BSG is one of only 3 “must-see” shows for me currently on television (the other 2 are Lost and the PBS NewsHour). My enthusiasm has waned a bit since “New Caprica,” but here’s what struck me as particularly interesting about at least the first couple of seasons:
1. The villains continually have the upper hand. That may not initially seem like a plus. But think of the number of shows where the heroes sail through life, barely needing to worry, while the villains face setback after setback that repeatedly results in defeat. E.g., Perry Mason, CSI, Star Trek (any generation), or the first Battlestar Galactica, where being trained by the Cylon defense force seemed to be a guarantee of utter incompetence in combat. Heroes that appear to face more realistic challenges that do not carry with them a guarantee of success are, at least, a refreshing change, and are more dramatically interesting for avoiding repetition and cliche.
Warning: Mild spoilers follow
February 25, 2008 at 5:39 pm
Posted in: Culture, Movies & Television, Science Fiction
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Pornography and Public Employment: Further Implications of Garcetti
posted by Paul Secunda
Having just returned from speaking at a great conference hosted by the First Amendment Law Review at UNC on all things Garcetti, it is interesting to see many of the various issues discussed there come to the fore in a recent case, Davis v. McKinney, No. 07-20184 (5th Cir. Feb. 21, 2008), decided by the Fifth Circuit this past Thursday. For the uninitiated, Garcetti v. Ceballos (U.S. 2006) is the watershed public employment free speech case that drastically cut down on public employees First Amendment expression rights while such employees are working pursuant to their official duties.
In Davis, here are the interesting background facts:
Davis filed this suit against the above named defendants and the several arms of the University of Texas (“UT”) System. Prior to December 2003, Davis was the IS Audit Manager at the UT Health Science Center in Houston, Texas (“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing computer-related audits and creating audit summaries and reports. Defendant McKinney is the Senior Executive Vice-President and Chief Operating officer of UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and System-wide Compliance Officer . . . .
[After applying for a promotion, Davis was involved in an audit investigation of physicians' computers.] Davis engaged IT Security and Information Service departments for assistance in confiscating computers from UT personnel. Eleven computers were identified that were believed to have intentionally accessed pornography. After further investigation, evidence in ten of the eleven computers strongly indicated that pornography had been intentionally accessed, including some material that Davis believed to be child pornography . . . .
Davis asked Corum [her direct supervisor] to be taken off the investigation because she felt it created a hostile work environment and the requirement that she review repugnant pornographic material denigrated her as a woman. Davis felt that she was receiving “heat” from other employees and that management was unresponsive to the findings of the inquiry.
Thereafter, Davis was given mundane tasks and she faced continuing harassment from those employees and supervisors who did not want her to continue with her investigation. She therefore sent an internal complaint letter regarding the “unethical and illegal” activity directed at her and alleged, “that upper management had a pattern of sweeping pornography investigations under the rug and not terminating or disciplining offending employees.” In this same letter, Davis wrote that, “because she was no longer confident that the UT System could investigate itself, she had contacted the Federal Bureau of Investigation concerning possible child pornography on eight computers and the EEOC about discriminatory practices.” This last action to go whistle blower would turn out to be crucial.
February 25, 2008 at 1:53 pm
Posted in: Employment Law
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Battlestar Galactica Interview Part II
posted by Daniel Solove
Dave Hoffman, Deven Desai, and I are pleased to present Part II of our interview with Ron Moore and David Eick, the creators, producers, and writers of the hit television show, Battlestar Galactica.
Part I of our interview explored the role of law in the show, exploring topics such as the legal system, lawyers, trials and tribunals, torture, necessity vs. moral principles, and deference to the military.
In Part II of our interview, Dave Hoffman interviews Ron and David about politics and the economy. How did the political system of the Twelve Colonies work prior to the cylon attack? After the destruction of the colonies, how does the economy work aboard the fleet? Why do people still continue to do their jobs without compensation? How does commerce work? Why do people still use money? Dave examines these fascinating questions and more.
Part II of the interview is 13 minutes, 57 seconds long. You can also access it, along with Part I, here.
Check back Tuesday morning, when we plan to post Part III of our interview — the final part — which addresses issues involving the cylons.
UPDATE: The interview has now been transcribed. You can read Part I here, and Parts II and III here.
February 25, 2008 at 12:03 am
Posted in: Contract Law & Beyond, Culture, Interviews, Law and Humanities, Law Talk, Movies & Television, Privacy, Privacy (National Security), Science Fiction, Technology
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The Sun Never Sets on the British . . . Emigrants
posted by Jaya Ramji-Nogales
The Telegraph reports on a recent OECD study finding that record numbers of skilled professionals are fleeing Britain for more hospitable lands, including the United States, Canada, Australia, New Zealand, France, and Spain. According to the report, the United Kingdom is said to have the worst “brain drain” problem of any nation, having lost one in ten of its most highly qualified professionals. In 2006, 207,000 citizens left the United Kingdom — more than one every three minutes. Only Mexico has had more emigrants in recent years. Apparently free universal health care is not enough to keep skilled Britons from leaving; high house prices and taxes and bad weather are the most commonly cited reasons for leaving. What’s saving Britain from a severe shortage of skilled labor? Immigrants, of course — over a million skilled immigrants have arrived on British shores to take the place of the 1.1 million Britons who have left.
February 24, 2008 at 7:01 pm
Posted in: Immigration
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A Hold on Democracy
posted by Frank Pasquale
Though DNA tests could help a lot of people, many are afraid of getting them–and for good reason:
Employers say discrimination is already prohibited in the workplace by the Americans with Disabilities Act and existing laws governing privacy of medical records. But employee rights advocates say nothing in those laws explicitly prevents employers hard-pressed to pay for mounting health care costs from trying to screen out employees they know are more likely to get sick.
Courts have yet to rule on the subject. When the Equal Employment Opportunities Commission sued the Burlington Northern Santa Fe Railway for secretly testing the blood of employees who had filed compensation claims for carpal-tunnel syndrome in an effort to discover a genetic cause for the symptoms, the case was settled out of court in 2002.
Fears about these possibilities have long led Congress to consider a general national ban on genetic discrimination. There is broad bipartisan support for the idea. . . but one man appears to be blocking it.
February 24, 2008 at 7:29 am
Posted in: Health Law
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Discriminating Our Way to Universal Health Care
posted by Frank Pasquale
When libertarian bloggers hear about rationing by the British National Health Service, they get quite distressed. But I rarely hear the same level of outrage over stories like this:
One of California’s largest for-profit insurers stopped a controversial practice of canceling sick policyholders Friday after a judge ordered Health Net Inc. to pay more than $9 million to a breast cancer patient it dropped in the middle of chemotherapy. . . . “Health Net was primarily concerned with and considered its own financial interests and gave little, if any, consideration and concern for the interests of the insured,” [a private arbitration judge] wrote in a 21-page ruling. . . . When Health Net dropped her in January 2004, [the patient] was . . . forced to stop chemotherapy for several months until she found a charity to pay for it.
A few years ago, a doctor/novelist (Robin Cook) suggested that private insurers may eventually provoke adoption of a universal health care system if they use new technologies of genetic discrimination to avoid sick patients.
February 23, 2008 at 10:03 pm
Posted in: Health Law, Privacy
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Making an Impact as a Law Journal Editor (Spring 2008)
posted by Dave Hoffman
(I’m reprising an edited and updated version of my April 2006 post on how incoming board members at law journals can make an immediate impact on their organization. The original post had a good comment thread, which hopefully we can reprise here.)
How can student editors efficiently improve their journal’s reputation? The problem is a hard one. Al Brophy has shown that standard measures of journal rank (see here and click on 2007 Rank, JNLS tab) correlate with overall school US News ranking, itself a sticky number. However, the Washington and Lee ranking methodology offers other options, including the increasingly popular IMPACT and IMMEDIACY variables. In this entry, I’m going to explore some ways that journal editors might be able to increase their scores on these factors, and (in a virtuous cycle) the number and quality of submissions. In no way should this post be seen as an endorsement of the current system, though I’m significantly more pro-student-edited-journals than many of my colleagues. This is more of a user’s guide to the devil we’ve got.
February 23, 2008 at 3:19 pm
Posted in: Law School (Law Reviews)
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The Public/Private Balance in Health
posted by Frank Pasquale
In a piece entitled “Paying Patients Test British Health Care System,” Sarah Lyall discusses the tensions between public provision and private markets in the UK. Lyall focused on the case of a breast cancer patient who wanted to use a new chemotherapy drug (Avastin). The National Health Service (NHS) provided most of her care, but would not pay the $120,000 needed for Avastin. The patient was about to sell her house to purchase the medicine, but then the NHS said that her choice to “go private” for the cancer drug would render her ineligible for NHS coverage of the other care she needed: Explaining such a policy, the health secretary, Alan Johnson, said
Patients “cannot, in one episode of treatment, be treated on the N.H.S. and then allowed, as part of the same episode and the same treatment, to pay money for more drugs.” Officials said that allowing Mrs. Hirst and others like her to pay for extra drugs to supplement government care would violate the philosophy of the health service by giving richer patients an unfair advantage over poorer ones.
Note that the NHS is not actually denying her care–it is refusing to pay. Though I wouldn’t endorse the Avastin decision, there are some good reasons for the NHS to manage the interaction of public and private plans–reasons that even the US has recognized in its limits on “balance billing” in the Medicare context.
February 23, 2008 at 7:12 am
Posted in: Health Law
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Michigan Law Review, Issue 106:4 (February 2008)
posted by Michigan Law Review
Michigan Law Review, Issue 106:4 (February 2008)
(Past issues are available on our website.)
Articles
Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567 (2008)
Mark A. Hall & Carl E. Schneider, Patients as Consumers: Courts, Contracts, and the New Medical Marketplace, 106 Mich. L. Rev. 643 (2008)
Correspondence
James J. White, Bankruptcy Noir, 106 Mich. L. Rev. 691 (2008)
Lynn M. LoPucki & Joseph W. Doherty, Bankruptcy Vérité, 106 Mich. L. Rev. 721 (2008)
Note
John C. Evans, Addressing Default Trends in Patent-Based Section 337 Proceedings in the United States International Trade Commission, 106 Mich. L. Rev. 745 (2008)
February 22, 2008 at 6:50 pm
Posted in: Law Rev (Michigan), Law Rev Contents
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Transformative Technologies
posted by Robert Ahdieh
Since some point in high school, I’ve had a bit of an obsession with the idea of “transformative technologies.” Basically, I’ve found it interesting to think about what technologies truly transform our lives, rather than simply offering added value – however significant we might perceive that value to be.
To wit: I’ve always thought of the radio as transformative, in creating a means for the instantaneous dissemination of identical information to a mass audience. The boob tube, by contrast, seems like mere icing on the cake.
More recently, and perhaps more counter-intuitively, I’ve been inclined to describe the answering machine as transformative – by contrast with the mobile phone. The answering machine, my logic goes, created a mechanism by which we could connect with someone in short order, without the need to actually locate them. (Of course, the telegraph might be understood to have done the same thing, but the relative challenges of communicating by telegraph might arguably place it a notch behind the answering machine, at least in the specific dimension on which I’m analyzing the latter. More importantly, I would suggest, the primary transformation wrought by the telegraph – which I would acknowledge – lies not in the capacity to communicate with someone without locating them, but in the capacity to communicate with someone at all. In this respect, it should be evaluated against the telephone, in terms of its transformative impact.)
The mobile phone, it is true, makes it easy for us to communicate, regardless of where we are. But (formerly) omnipresent pay phones did something similar – at least in tandem with answering machines, and later voicemail. The ease of actually talking wherever we are, moreover, is less self-evidently transformative to me, than the ease of receiving the content of such communications, regardless of where we are.
A story on National Public Radio last week, however, made me wonder. In it, the reporter described the increasing participation of fairly small-scale African farmers in global markets. A number of relevant variables came into the picture, but among the most significant was the widespread availability – and use – of mobile phones by such farmers. The latter, the report indicated, have “created a great sense for the farmers of reality, of what urban markets are like.”
Now that’s something different. That a small-scale farmer in Africa, with little other exposure to the global economy, might gain insight into it via his mobile phone struck me as truly transformative.
February 22, 2008 at 6:13 pm
Posted in: Technology
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Things That Make You Go Hmmm . . . .
posted by Jaya Ramji-Nogales
The March Atlantic Monthly has an interesting blurb about increasing wage discrimination against overweight white women, based on a report from the U.S. Bureau of Labor Statistics. Even more interesting than the finding of wage discrimination was the finding that the rate of being overweight and obese in white females has increased from 12.6% in 1981 to 50.4% in 2000. Perhaps I’ve been living under a rock, but this seems to me a shocking jump, and during a period when my impression was that the U.S. was paying increasing attention to healthy diets and exercise. It’s not entirely clear where the primary source found the data on overweight and obese women; the weight gain findings are mentioned only in the context of a dataset that examines the weight of a cohort of women over time through annual and then biennial self-reporting interviews. I can’t imagine the report based the weight-gain statistics on this crowd, given that these women are likely to gain weight as they get older and therefore don’t strike me as a reliable subset from which to extrapolate to the population as a whole. Any thoughts from statisticians and others on the source and reliability of these data?
February 22, 2008 at 1:05 pm
Posted in: Employment Law
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Battlestar Galactica Interview: Stay Tuned
posted by Daniel Solove
For those who are listening to the Battlestar Galactica interview, we plan to post Part II on Monday and Part III on Tuesday. So please stay tuned. More is on the way, and Parts II and III are really terrific!
February 22, 2008 at 12:36 pm
Posted in: Movies & Television
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A Place for Paranoia
posted by Robert Ahdieh
Looking for a way to rationalize your suspicions about the odd-looking guy you always see at the airport? Anxious to justify your worries about the stains on that backpack sitting in the hallway? Look no further. Paranoia has a new home page.
And for those obsessed with the imminent invasion of illegal immigrants in black helicopters, there’s a place for you as well!
February 22, 2008 at 8:36 am
Posted in: Weird
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Coming Back from the Dead
posted by Daniel Solove
Lazarus had it easy. Not so for Laura Todd, who has been trying to come back from the dead for nearly a decade. According to WSMV News in Nashville:
According to government paperwork, Laura Todd has been dead off and on for eight years, and Todd said there’s no end to the complications the situation creates.
“One time when I (was) ruled dead, they canceled my health insurance because it got that far,” she said.
Todd’s struggle started with a typo at the Social Security administration. She said the government has assured her since the problem that they have deleted her death record, but she said the problems keep cropping up.
On Wednesday, the IRS once again rejected her electronic tax return. She said she’s gone through it before.
“I will not be eligible for my refund. I’m not eligible for my rebate. I mean, I can’t do anything with it,” she said.
Channel 4’s Nancy Amons first reported about Todd’s ordeal last week, but Amons has since found out more about how common the problem is.
According to a government audit, Social Security had to resurrect more than 23,000 people in a period of less than two years. The number is the approximate equivalent to the population of Brentwood.
The audit said the lack of documentation in the Social Security computer makes it impossible for the government’s auditors to determine if the people are dead or alive.
But some of those who are alive have found more complications after their resurrection.
Illinois resident Jay Liebenow was also declared dead. He said Todd is now more vulnerable to identity theft because after someone dies, Social Security releases that person’s personal information on computer discs. He said the information is sold to anyone who wants it, like the Web site Ancestry.com.
One of the problems with modern recordkeeping is that although computers make things more efficient, they compound the effects that errors have on people’s lives. The difficulty is that the law currently does not afford people with sufficient power to clean up mistakes in their records. Since information is so readily transferred between entities, an error that is corrected in one database has often migrated to another database before the correction. The error doesn’t die. Instead, you do.
Responsibility should be placed on every entity that maintains records to ensure that information is correct and that errors are promptly fixed. Moreover, when information is shared with others, the one sharing the information should have duties to inform the others of the error; and those receiving the data should have a duty to check for corrections in the data from the source.
Right now, we’re living in a bureaucratic data hell, and that’s because that there aren’t sufficient incentives for entities to be careful with the records they keep about people.
Image: The Resurrection of Lazarus by Vincent van Gogh, 1889-90, from Wikicommons.
February 22, 2008 at 12:04 am
Posted in: Privacy, Privacy (Consumer Privacy), Privacy (ID Theft)
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The Wikileaks Injunction Case
posted by Bruce Boyden
Since it involves a blend of civil procedure, internet law, and copyright — i.e., my entire teaching package — I really have no excuse for not posting on the Wikileaks injunction matter. For those who have not been following it, a Swiss bank with a branch in the Cayman Islands, Bank Julius Baer (“BJB”), filed suit against the website Wikileaks.org in federal court in California and obtained a pair of emergency orders essentially shutting the domain name down. Wikileaks is a user-edited website, much like Wikipedia, but where the purpose is not to post encyclopedia entries, but rather leaked documents from governments and private entities. BJB argued as a basis for the orders that someone, allegedly a former employee, posted stolen documents revealing confidential aspects of BJB’s operations.
The orders require the domain name registrar, Dynadot, to point the wikileaks.org domain name to an empty page. This doesn’t shut down the site, exactly, it just makes it harder to find. It’s like an order to a telephone company ordering a vanity 1-800 number like 1-800-BBOYDEN disconnected. Sure, you can still reach me on my cell and work numbers, but you’ll have to go look those up and most people won’t bother. (Note: I don’t actually have a 1-800 number — it’s a hypothetical.) The “Order Granting Permanent[!] Injunction” and “Amended TRO and Order to Show Cause re Preliminary Injunction,” both dated Feb. 15, are available online, as is the entire court docket, via Justia. (See Michael Froomkin’s discussion of why the relationship between the two orders is confusing.)
There’s lots of focus on the broader question of whether domain-name-disabling is a prior restraint barred by the First Amendment. I want to focus on several lesser but still interesting nuggets: the overlooked privacy interests at stake, the role of the DMCA, the breadth of TROs in the internet age, and “futility” arguments against anti-leak injunctions based on internet distribution.
February 21, 2008 at 6:30 pm
Posted in: Cyberlaw, Intellectual Property
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Law Review Article Submission Resources (Spring 2008)
posted by Daniel Solove
I’m reprising my post of law review submission resources that I last posted in fall 2007. I assume that most of the information hasn’t changed since then, but I haven’t had a chance to recheck it.
So I thought I’d tap the powers of the blogosphere — please let me know if any of the information below has changed.
Also, a request to law review editors: Please put in the comments when you plan to begin reviewing articles for the spring submission season.
Article Submission Length Restrictions
Emory Law School’s Library has a very useful chart of article length restrictions at the top 35 law reviews.
The general consensus is that many top law reviews have an article length limit of 35,000 words and a preference for no more than 25,000 words. Virginia Law Review has the strictest policy, with a limit (not just a preference) of under 25,000 words. All the rest have either no upper limit or a 35,000 to 40,000 word limit. As for preferences, the range is between 25,000 to 35,000 words, with most at 25,000.
Law Review Contact Information
1. Emory Law School’s Library maintains contact information, including email addresses, for the top 25 law reviews.
2. JURIST has links to countless law review websites.
3. LexisNexis Directory of Law Reviews
Law Review Rankings
Washington & Lee’s Law Library has a comprehensive ranking of law reviews based on citation counts.
Electronic Submissions
1. ExpressO provides for electronic submission to over 550 law reviews. However, a number of the top 25 law reviews still require either paper submissions or electronic submissions via their own website. For those law reviews not allowing an ExpressO electronic submission, ExpressO will print out the article and send it to these journals in hard copy. It costs extra for these submissions.
Chart of Law Review Submission Policies and Webpages
After the break is a chart of the submission policies and submission pages for several top law reviews.
February 21, 2008 at 3:47 pm
Posted in: Law School (Law Reviews), Law School (Scholarship)
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Larry Solum’s Entry Level Hiring Report 2007-08
posted by Daniel Solove
Over at Legal Theory blog, Larry Solum is gathering information for his annual law school entry level hiring report. If you know of any information, please contact Larry Solum.
For his previous entry level hiring reports click on the links below:
* Solum’s 2006-07 Law School Entry Level Hiring Report
* Solum’s 2005-06 Law School Entry Level Hiring Report
* Solum’s 2004-05 Law School Entry Level Hiring Report
* Solum’s 2003-04 Law School Entry Level Hiring Report
February 21, 2008 at 3:42 pm
Posted in: Law School (Hiring & Laterals)
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Law Professor Blog Rankings — By Citation
posted by Daniel Solove
For those who love rankings (which is all of us except those who hate rankings but love looking at them), there’s a new ranking of law professor blogs. Recently, Paul Caron posted a ranking of law professor blogs based on visitor traffic. Over at The Race to the Bottom blog, Robert Brown has posted a ranking of law professor blogs by citation. Here are the top 10:
1. Sentencing Law and Policy, 156
2. Jurist- Forum, 156
3. Volokh Conspiracy, 135
4. Balkinization, 106
5. LessigBlog, 79
6. Patently O, 73
7. Jurist- Paper Chase, 50
8. Concurring Opinions, 45
9. White Collar Crime Prof Blog, 44
10. Prawfs Blawg, 37
The total law review citations for about 130 law professor blogs that Brown counted is 1361.
If we compare the top 10 lists for visitor traffic and citations, the following blogs appear on both lists:
* Volokh Conspiracy
* Balkinization
* Concurring Opinions
* Sentencing Law & Policy
Related Posts:
* Solove, Law Professor Blog Rankings (February 2008)
* Solove, Citations to Blogs (February 2008)
February 21, 2008 at 12:33 pm
Posted in: Blogging, Law School (Scholarship)
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