Archive for March, 2009
This post written by my research assistant
posted by Kaimipono D. Wenger
A person’s online identity is her own creation, a pure expression of her persona and innermost desires. It is quintessentially tied to her personhood.
Except when it isn’t. From the New York Times:
The rapper 50 Cent is among the legion of stars who have recently embraced Twitter to reach fans who crave near-continuous access to their lives and thoughts. On March 1, he shared this insight with the more than 200,000 people who follow him: “My ambition leads me through a tunnel that never ends.”
Those were 50 Cent’s words, but it was not exactly him tweeting. Rather, it was Chris Romero, known as Broadway, the director of the rapper’s Web empire, who typed in those words after reading them in an interview. “He doesn’t actually use Twitter,” Mr. Romero said of 50 Cent, whose real name is Curtis Jackson III, “but the energy of it is all him.” . . . In many cases, celebrities and their handlers have turned to outside writers — ghost Twitterers, if you will — who keep fans updated on the latest twists and turns, often in the star’s own voice.
How does this affect the way that we should view property interests in online expressions?
March 31, 2009 at 9:20 pm
Posted in: Technology
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New York’s Workman’s Comp Swamp as Economic Indicator
posted by Frank Pasquale
While there is a lot of irrational animus against government nowadays, some agencies seem tailor-made to provoke public ridicule and scorn. Kudos to N.R. Kleinfeld and Steven Greenhouse for investigating a tragically cronified bureaucracy at the New York State Workers’ Compensation Board:
Workers’ compensation systems across the country are troubled, and reform efforts are under way here. But New York, a pioneer of the concept and home to the nation’s second-largest system, has some signature claims to dysfunction and is widely recognized as the most adversarial.
Though its commissioners largely function as a legal tribunal, most are not lawyers but relatives or allies of politicians, appointed usually without regard to experience in the field.
Though many cases turn on medical evaluations, the board has not had its own medical director for nearly a decade. Decisions are often driven by the opinions of doctors certified by the state as so-called independent medical examiners. Yet claimant lawyers and treating doctors say these examiners often understate workers’ ailments to win business from the insurers who pay them. . . . [E]verywhere the system tolerates delays that can make the injured wait months or years for money and care. . . . “A lot of it is meatball justice” [said one lawyer named Anthony Pizza].
Sadly, this process is becoming ever more common in the US, as endless lines become de facto rationing mechanisms for veterans’ benefits and SSDI payments. The chaotic structure of the NY Board reminds me of Simon Johnson’s must-read article on the financial crisis–particularly the sections on elites’ taste for chaos.
March 31, 2009 at 8:43 pm
Posted in: Administrative Law, Economic Analysis of Law
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Bread and Circuses
posted by Kaimipono D. Wenger
With the economy reeling, the recession threatening to turn into a depression, the Dow in the toilet, the national debt at record levels, joblessness and foreclosures spiking . . . I for one am glad that a senior member of the Senate Finance Committee (as well as Taxation and Judiciary, among other committees) is focused on what really matters. Namely, making sure once and for all that we Americans get a better system of determining quien es mas macho in college football.
From the Deseret News:
Hatch, of course, made news last week by saying he is planning a Senate hearing into possible antitrust violations by the BCS and may introduce legislation to “fix” the system by requiring a playoff or some other system that allows all teams the possibility of playing their way to a championship. . . .
Hatch said, “It isn’t fair. You have a team like the University of Utah (which was the nation’s only undefeated team) that not only went to a lesser bowl, but kicked the daylights out of one of the best teams in the country that was rated No. 1 a number of times in the year.”
I only hope that Sen. Hatch has time to address the designated hitter rule while he’s at it.
March 31, 2009 at 7:21 pm
Posted in: Current Events
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Vanderbilt Law Review, Volume 62, Number 2 (March 2009)
posted by Vanderbilt Law Review
Vanderbilt Law Review, Volume 62, Number 2 (March 2009)
2009 Symposium on Neglected Supreme Court Justices
James W. Ely, Jr. & Mark E. Brandon, Introduction: The Rankings Game, 62 Vand. L. Rev. 311 (2009).
G. Edward White, Neglected Justices: Discounting for History, 62 Vand. L. Rev. 319 (2009).
Stephen B. Presser, Samuel Chase: In Defense of the Rule of Law and Against the Jeffersonians, 62 Vand. L. Rev. 349 (2009).
William R. Casto, There Were Great Men Before Agamemnon, 62 Vand. L. Rev. 371 (2009).
Mark R. Killenbeck, William Johnson, the Dog that Did Not Bark?, 62 Vand. L. Rev. 407 (2009).
Herbert A. Johnson, Bushrod Washington, 62 Vand. L. Rev. 447 (2009).
Austin Allen, Jacksonian Jurisprudence and the Obscurity of Justice John Catron, 62 Vand. L. Rev. 491 (2009).
Paul Finkelman, John McLean: Moderate Abolitionist and Supreme Court Politician, 62 Vand. L. Rev. 519 (2009).
J. Gordon Hylton, The Perils of Popularity: David Josiah Brewer and the Politics of Judicial Reputation, 62 Vand. L. Rev. 567 (2009).
James W. Ely, Jr., Rufus W. Peckham and Economic Liberty, 62 Vand. L. Rev. 591 (2009).
Samuel R. Olken, Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009).
David R. Stras, Pierce Butler: A Supreme Technician, 62 Vand. L. Rev. 695 (2009).
Linda C. Gugin, Sherman Minton: Restraint Against a Tide of Activism, 62 Vand. L. Rev. 757 (2009).
*Audio recordings from the Conference presentations that contributed to this Symposium issue are available on our website.
Interested in writing a response to one of these articles? Check out En Banc to find out how.
March 31, 2009 at 4:27 pm
Posted in: Law Rev (Vanderbilt), Law Rev Contents
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Hayek, the True Sale Doctrine, and the Origins of the Financial Crisis
posted by Nate Oman
Here is my theory du jour about the origins of the financial crisis, suggested by one of my students*: blame it all on the true sale doctrine or rather on its evisceration. Stick with me to the end, and I have some overly broad generalizations about expertise, property rights, and Hayek.
The “true sale doctrine” is not a staple of the law school curriculum. At best it makes a brief cameo in secured transactions and bankruptcy courses. Notwithstanding this academic obscurity, however, its failure may have had a big role in the current melt-down of the banking sector and with it the world economy. Here is the gist of the issue:
Securitization is the process by which financial assets (essentially promises to pay money in the future) are transferred from their original holder to a special purpose vehicle such as an LLC or business trust, which then issues securities entitling the holder to some fractional right to the income from the transferred assets. Hence, for example, a bank might transfer mortgage loans to an SPV, the SPV would then issue securities to investors, and the cash from the sale of these securities would flow back to the bank. The investors in the securities have two ultimately inconsistent goals.
March 31, 2009 at 3:55 pm
Posted in: Contract Law & Beyond, Corporate Finance, Economic Analysis of Law
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The Yale Law Journal Pocket Part: Roberts Court Jurisprudence and Legislative Enactment Costs
posted by Yale Law Journal
The Pocket Part is proud to announce the publication of Roberts Court Jurisprudence and Legislative Enactment Costs by William Rinner. The piece highlights a crucial but overlooked function of the judiciary in crafting doctrines that discourage constitutionally problematic statutes. Rinner argues that rather than drawing explicit boundaries of permissible and impermissible statutory schemes, courts can and do produce constitutional doctrine that leaves these boundaries blurry, thus raising the risk of reversal for time- and resource-strapped legislators.
March 31, 2009 at 11:19 am
Posted in: Law Rev (Yale), Law Rev Forum
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Delaware Back to Sturdy Doctrine; Good Faith in Coma
posted by Lawrence Cunningham
Last week, the Delaware Supreme Court backed off any notion that directors owe their corporations any special duties of good faith (or absence of bad faith) and retreated to the more traditional standards of corporate duties. In a refreshingly lucid and terse (easily edited to 5 pages of casebook text) opinion, Justice Carolyn Berger, for the Court en banc, clarifies that directors do not have to follow any specific steps when deciding to sell corporate control and that reasonable steps to that end are enough to reject any claim that they failed to act in good faith—even on a motion for summary judgment.
This decision, Lyondell Chemical Co. v. Ryan, is noteworthy because in two other noted opinions in 2006 (Disney and Stone v. Ritter), the Delaware Supreme Court suggested, in dicta, that there were potentially recurring contexts in which directors might fail to act in good faith such that, apart from any other duty, they may be personally liable for that. Delaware’s latest marks return to more familiar doctrinal terrain. The role of good faith, ultimately, is to prevent fiduciaries who engage in particularly egregious conduct, or “conscious disregard of duty,” from avoiding liability for money damages or enjoying corporate indemnification, both under Delaware statutory law.
Of course, given Delaware’s notoriously shifting corporate law, what Justice Berger settles in Lyondell could change in Delaware’s next big case. After all, Delaware courts, consciously seeing themselves as judges in equity, may, on egregious facts, revive the notion of good faith as an independent fiduciary duty or some vital aspect of obligation, such as a component or cognate of the duty of loyalty. But, for now, Lyondell puts the notion of good faith in something of a coma. Not dead, but nary alive.
Where that leaves Delaware corporate fiduciary duty doctrine is on more familiar terrain. The following is a snap shot of that terrain for directors and officers.
March 31, 2009 at 10:28 am
Posted in: Corporate Law
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Violence Against Women and Forgiveness
posted by Solangel Maldonado
“In the U.S., a woman is beaten by her partner every 9 seconds.” This was the subject line of an email announcing tonight’s Take Back the Night rally at Seton Hall Law School to raise awareness and protest violence against women. Although I have seen the statistic many times and I cover domestic violence in my Family Law course, I am still shocked by the prevalence of domestic abuse. According to the U.S. Department of Justice, one-third of all female murder victims are killed by an intimate partner and the proportion of female murder victims killed by an intimate partner has been increasing in recent years.
As shocking and disturbing as these statistics are, I am actually more surprised by number of teenage girls who do not see domestic abuse for what it is—a crime. I am referring to (you guessed it) R & B singer Chris Brown’s attack on his girlfriend, pop star Rihanna. According to court documents, Brown shoved Rihanna’s head against a car window, then punched, bit, and choked her nearly to the point of unconsciousness. He also threatened to kill her. Although Brown has been charged with two felonies—assault and criminal threats—46% of teenagers in a recent survey said that Rihanna was responsible for the attack and 52% said that they were both responsible. Why do so many teens blame the victim?
March 31, 2009 at 10:24 am
Posted in: Criminal Law, Family Law, Feminism and Gender
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Adulterous Contracts
posted by Nate Oman
The recession seems to be good for business at dating sites, including AshleyMadison.com, which is giving GirlsGoneWild.com a run for its money for the sleeziest business model award. AshleyMadison devotes itself to the facilitation of extramarital affairs. The Terms of Service contract makes for some interesting reading.
March 30, 2009 at 10:23 pm
Posted in: Contract Law & Beyond
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What’s Wrong with Teen Sexting?
posted by Jaya Ramji-Nogales
The teen pastime of “sexting” has taken a serious tangle with the law of late in our fair state of Pennsylvania. For those who haven’t heard of the phenomenon, “sexting” is the practice of sending nude or semi-nude pictures of oneself (or of one’s closest friends or enemies) via cell phone to a love interest, a friend, or as many classmates as possible. A recent study by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens surveyed had electronically sent or posted online nude or semi-nude photos or videos of themselves — so this appears to be a sizeable and quite serious problem. Even worse is the jaw-dropping response from local law enforcement.
In one example, last fall, school officials from the Tunkhannock School District in Wyoming County, Pennsylvania, seized several cell phones from high school students. The officials searched the phones and discovered that male students had been using them to trade photos of semi-nude and nude female students. The local district attorney threatened to charge three girls — two photographed in white bras and one with a towel covering her from the waist down — with child pornography or open lewdness unless they agreed to participate in probation in the form of a five-week re-education program. He did not threaten to bring charges against any of the boys trading photographs on their cell phones. The concerns raised by this approach abound: privacy, free speech, proportional punishment (if found guilty of child pornography, the teens would be subject to Megan’s Laws disclosure requirements and other sex offender laws), and, of most interest to yours truly, the gendered nature of this particular bit of legal discourse.
March 30, 2009 at 9:45 pm
Posted in: Feminism and Gender
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A very disturbing report
posted by Kaimipono D. Wenger
According to a new press release from the UK/Iraqi advocacy group Iraqi-LGBT, Iraq will begin executions this week of dozens of criminals held for capital crimes. One of those “crimes” is homosexuality, and there are believed to be several death-row prisoners who are slated for execution in the next month, simply for the crime of being gay. The Iraqi government is not discussing the details of these prisoners’ cases.
I can’t vouch for the veracity of this report — it’s on several blogs right now, but has not yet been verified by any mainstream news source that I could find. But the report is sufficiently alarming that I thought our readers might want to know about it. (And it is very much in line with the reports that have been coming out of Iraq for years, that “morality police” death squads have targeted and killed many gay Iraqis.)
March 30, 2009 at 7:57 pm
Posted in: Capital Punishment, Current Events
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Thrilling News: Phoebe Haddon Will Be Maryland Law’s New Dean
posted by Danielle Citron
I am so proud, and thrilled, to share with our CoOp community that distinguished scholar and faculty member of Temple University Beasley School of Law Phoebe Haddon will be the University of Maryland School of Law’s ninth Dean, following the wonderful ten-year deanship of Karen H. Rothenberg. Phoebe Haddon is a widely respected, national leader in legal education and an expert in jury participation, the courts, and diversity. Dr. David Ramsay, the President of University of Maryland, Baltimore, remarked that: “Phoebe Haddon is passionate about legal education, about the essential role of innovative and influential scholarship in the continued development of our faculty, and about the School of Law’s vital public service mission.” This is thrilling news for the Maryland faculty, its students, alumni, and our wider legal community.
March 30, 2009 at 11:36 am
Posted in: Current Events
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Blacklisted from Health Insurance
posted by Daniel Solove
For the millions of people losing their jobs and having to obtain health insurance on their own, they are in for quite some difficulty if they have a pre-existing condition. According to the Miami Herald:
[M]aterial available on the Web shows that people who have specific illnesses or use certain drugs can’t buy coverage.
”This is absolutely the standard way of doing business,” said Santiago Leon, a health insurance broker in Miami. Being denied for preexisting conditions is well known, but when a person sees the usually confidential list of automatic denials for himself, “that’s a eureka moment. That shows you how harsh the system is.” . . . .
Searching the Web, The Miami Herald found underwriting guidelines for Coventry Health Care, which owns Vista; Wellpoint; Assurant Health; and Blue Cross Blue Shield of Nebraska.
Among the health problems that the guides say should be rejected: diabetes, hepatitis C, multiple sclerosis, schizophrenia, quadriplegia, Parkinson’s disease and AIDS/HIV.
For cancer, the key is how patients have been doing in remission. Wellpoint, a national insurer, rejects applicants who have had breast or prostate cancer within the past five years. With other types of cancer, 10 years must have passed. Assurant Health, based in Milwaukee, rejects most patients whose cancer has not been in remission for at least eight years.
Other reasons for automatic denial by various companies: alcohol-related problems of people who have not been abstinent for at least six years, chronic bronchitis, severe migraines, and a cardiac pacemaker installed within the last two years.
Some insurers will automatically reject applicants who are using certain prescription drugs. Wellpoint denies anyone who within the past year has taken Abilify and Zyprexa for mental disorders as well as Neupogen, which is used to treat the side effects of chemotherapy. Vista lists the anticoagulant Warfarin and the pain medication Oxycontin. Both companies list insulin.
The article also discusses how the insurers use database companies to gather data about people’s medical conditions and prescription drug use:
To make sure that applicants are not lying, insurers hire a data-gathering service — Medical Information Bureau, Milliman’s Intelliscript or Ingenix Medpoint.
Intelliscript and Medpoint do computerized searches of a person’s drug use, gleaned from pharmacy benefits managers and other databases.
The difficulty is that if a person has a disease, then it may be nearly impossible for that person to obtain health insurance. My advice: (1) stay employed; (2) don’t get ill. Otherwise, you’re basically out of luck.
March 30, 2009 at 12:52 am
Posted in: Health Law, Insurance Law, Privacy, Privacy (Medical)
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Thanks, and Goodbye
posted by Darian Ibrahim
Thanks to my hosts for a fun month of blogging here at Co-Op. I had planned to blog on some additional topics, but there’s nothing like a deadline (for me: to answer this Call for Papers) to focus the attention on writing. I really enjoyed the time here and especially thank the commentators on my posts for the helpful back and forth!
March 29, 2009 at 12:11 pm
Posted in: Blogging
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When Does Ordinary Law Enforcement Become a “War on Crime?”
posted by Corey Yung
In 1971, Richard Nixon declared the War on Drugs in America. However, the laws enabling that criminal war had been enacted years before Nixon’s speech officially recognized the new conflict. By 1968, Lyndon Johnson had established the Bureau of Narcotics and Dangerous Drugs (the predecessor organization to the Drug Enforcement Agency) to lead the charge against domestic drug use and distribution. The next year, efforts to limit drug smuggling along the Mexican border culminated in Operation Intercept which nearly closed the border entirely. When Nixon took over the Presidency, he signed into law the Comprehensive Drug Abuse Prevention and Control Act which established the categorization system for regulating narcotics. Perhaps the clearest sign that something was afoot even before Nixon’s speech was that the anti-drug-war group, The National Organization for the Reform of Marijuana Laws (“NORML”), was founded to counter the shifting policy priorities of the criminal justice system. By the time of the official declaration, the War on Drugs was already underway.
So, when did the “war” actually start? In an era when foreign wars are not even truly “declared” anymore, perhaps it is not surprising to think that a criminal war might be underway without a specific statement from the federal government. In a paper I have been working on for a while that I will be presenting at the Law & Society Conference, I contend that a criminal war on sex offenders may have already begun. We are, thus, in a period like that in the late 60′s and early 70′s wherein the conflict has started even if the government has not yet acknowledged it.
March 27, 2009 at 10:48 am
Posted in: Criminal Law
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E-Voting: Something Broken In Need of Something New
posted by Danielle Citron
Vendors assure us that security concerns about their e-voting machines are overblown and that bugs are a thing of the past. But the overwhelmingly evidence suggests otherwise and, at least for Premier (formerly Diebold), these claims ring hollow. Consider these recent events. Last week’s public hearing held by California’s Secretary of State Debra Bowen confirmed that a coding error in Premier’s Global Election Management System (GEMS) tabulation software automatically deletes the first batch of tallied votes from optical scan paper ballots after they are fed into optical-scan machines. As testimony made clear, that software flaw erased 197 vote-by-mail ballots in the November election in Humboldt County, California. At the hearing, Premier representatives admitted that every version of its GEMS tabulation software fails to record significant events that occur on the machines, including when errors in the software deletes votes or when election officials intentionally delete ballots from the system. This problem is widespread as GEMS software tabulates votes for Premier’s touch-screen and optical-scan machines used in more than 30 states. Why are such audit logs critical? They record events that occur on voting systems to ensure the integrity of elections and to help identify the source of any problems in those machines.
These kinds of problems are particularly serious as vote rigging isn’t the unheard of occurence as vendors suggest. For instance, a 10-count indictment unsealed last week accuses five Clay County, Kentucky officials, including a county clerk and election officials, of engaging in corrupt tactics to obtain political power and personal gain in violation of the federal RICO statute. The indictment alleges that an election officer defendant marked votes or issued tickets to voters who had sold their votes and changed votes at electronic voting machines. Another defendant is accused of instructing election officers on how to change votes at the voting machines. Not suprisingly, Colorado’s Election Reform Commission has recommended that county clerks do away with e-voting and shift to all-paper ballot system by 2014. But is that the answer given our long history of fraud with paper ballot systems and the complexity of local voting ballots? Your insights are sorely needed.
March 26, 2009 at 9:57 am
Posted in: Administrative Law, Technology
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Unsending an Email
posted by Daniel Solove
From CNN:
Most of us have done it.
Instead of hitting “reply” to an e-mail, we accidentally push “reply all,” sending a potentially embarrassing or insulting message to those we didn’t intend to see it.
To address this problem, Google Inc.’s Gmail Labs has launched an experimental feature called “Undo Send” that gives users a chance to rewrite their message, correct settings or simply fix typos.
When a Gmail user who enables this feature sends an e-mail, a button that says “Undo” will pop up on their screen for five seconds. If the user hits the button within that time, the service will retrieve the e-mail in draft form — allowing the user to make changes or cancel the message altogether.
I assume that this service works by delaying sending out an email after the user hits the send button. Suppose that Google offered a different service, one that allowed users to edit or delete emails sent after being received by recipients. Currently, I don’t think it would be possible within the technical architecture of email systems, but I wonder whether there’s a way it could be possible and/or legal. Would such a service be desirable? It would certainly be so for senders, who may want to zap the existence of emails they later came to regret. But what about the recipients, who would suddenly see emails vanish from their inboxes or change in content?
March 25, 2009 at 7:31 pm
Posted in: Privacy, Privacy (Consumer Privacy), Technology
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Examples of Holmesian Contracts?
posted by Dave Hoffman
As a part of an experimental project, I’m trying to find examples of contracts which, when breached, have a similar psychological profile to a speeding ticket. That is, are there categories of deals where people generally see breach in the way that Justice Holmes purportedly) did: “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it – and nothing else.”
Most people don’t think of contracts in this way. But perhaps there are certain contexts where they do. The reason I think a speeding ticket is a nice analogy is that most people don’t think of speeding as an ordinary crime, though it is punished by the state. There is generally no moral component to being caught (reckless, high-speed, chases are perhaps a bit of a counter-example).
I’ve come up with a very narrow list so far: (1) breaching certain obligations limiting your use of software downloaded online; (2) late returns to video stores (which might not even be a breach); and (3) a contractor’s duty to finish a job on time. All of these share the characteristic of being commonly breached contracts where I don’t think we would anticipate that the breachee has a reasonable likelihood of feeling morally harmed. I’d appreciate any other ideas you might have.
March 25, 2009 at 7:00 pm
Posted in: Contract Law & Beyond
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Final Ranking]">The Best and Worst Law Reviews, Based on their Customer Service [Final Ranking]
posted by Dave Hoffman
Brian Leiter has been playing with the Condorcet Internet Voting Service to measure law school rank and law review rank by prestige. As Brian notes, there is a striking correlation between USNWR rankings and those for his polls of law schools and law reviews. (The latter, at least, isn’t surprising.)
Let’s try something different. As the comments to this post suggest, authors have some odd experiences when dealing with law review editors (both peer and students). Some journals are very professional in their dealings, others never get back to you. Some journals are bluebook fiends, requiring citation of obvious points. Others barely touch the editing pen.
I’ve created a poll which asks you to rank law reviews by their relative quality in back-of-the-office operations: do they do a good job communicating with prospective authors; are they good, value-adding, editors; do they create useful online fora to discuss articles post-publication; do they publish on time, etc. While it’s probably the case that customer service isn’t something that authors care much about when choosing between journals of very distinct prestige ranks, it ought to matter in close cases.
Go ahead, take the poll. Leave comments about particularly good or bad law review customer experiences below.
[For the final results, click on through to the next page.]
Final Ranking]">
March 25, 2009 at 6:26 pm
Posted in: Law School (Law Reviews)
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Frank Partnoy on Derivatives
posted by Deven Desai
Lawrence has done some great work on helping us understand the wild world of corporate law and finance. Today, another law professor has some insights about what is going on. Frank Partnoy is featured on Fresh Air. You can listen to the talk at the site, and it has a good excerpt from the afterword to Frank’s book, FIASCO: Blood In The Water On Wall Street’ which has just been re-issued in paperback.
Here is a fun quote:
I thought Greenspan’s laissez-faire zealotry clouded his judgment, and I said so publicly (not that he cared, or even heard). He saw no reason for any legal rules to govern the markets. Greenspan even boasted that there was no need for rules prohibiting fraud, because the markets inevitably would discover it. According to Greenspan, market competition alone, without any regulation, was sufficient, because no one would do business with someone who had a reputation for engaging in fraud. To me, Greenspan sounded a lot like Morgan Stanley’s public relations department.
Frank also has a new book The Match King: Ivar Kreuger, The Financial Genius Behind a Century of Wall Street Scandals coming out on April 29.
March 25, 2009 at 5:45 pm
Posted in: Corporate Law
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