Author Archive for bruce-boyden
Tin Men
posted by Bruce Boyden
As a follow-up to my post about an apparently sleazy car sales tactic a few days ago, I thought I’d point you to a fascinating undercover look at the world of car sales from Edmunds.com. The reporter spent 3 months as a new car salesman, part of it at a high-pressure showroom dedicated to a Japanese brand, and the other at a “no-haggle” dealership for an American brand. In general, the article reminds me of the movie Boiler Room, as well as my own brief career in high-pressure sales (don’t ask). The traditional car lot is a shark pit of deceptive maneuvers aimed at separating marks from their money. The “no-haggle” lot seems much better, but it also seems like it’s not doing a lot of business.
There’s evidence the Internet is changing the whole business:
I was already beginning to see the impact of the Internet because of something that happened during my first few days there. [The reporter talked to a man waiting in the maintenance area, who tells him he got an "awesome deal" on one of the dealership's new SUVs -- $300 below invoice.] I asked how he did it. He said he checked prices on the Internet. He then called the fleet manager and made the deal over the phone.
I had a schizophrenic reaction to this. Part of me admired the fact that he had outfoxed the dealer. But the car salesman side of me was angry that I never “got a shot at him.” It seemed like just a matter of time before people who, in the past, walked onto our car lot, would be on the Internet making deals.
The salesmen are only vaguely aware of this developing trend. I was standing on the curb next to George and we saw one of these high-demand SUVs ready for delivery.
“Another damn Internet sale,” George said. “Why don’t they turn that car over to us? We’d get a grand over sticker. Instead they’re selling it at invoice. Does that make sense?” As the days passed I noticed more and more cars marked “carsdirect.com.” And as I approached people on the car lot they often informed me that they were here to see the fleet manager. More Internet customers.
This indicates that wealthier, computer-savvy customers may be circumventing the sleazy sales tactics, leaving the sharks to prey only on poorer, less-informed customers. It could develop into yet another element of the “poor tax.”
HT: Consumerist
July 22, 2006 at 11:30 pm
Posted in: Consumer Protection Law, Technology
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J’Accuse!
posted by Bruce Boyden
J’accuse enfin le … conseil de guerre d’avoir violé le droit, en condamnant un accusé sur une pièce restée secrète….
Today is the 100th anniversary of the end of one of the more astounding legal episodes in modern history, the Dreyfus Affair. French President Jacques Chirac marked the occasion on July 12 (Fr.; BBC coverage) by giving a speech honoring Alfred Dreyfus, a French artillery captain convicted of treason in 1894. July 12, 1906, was the date on which the Supreme Court of Appeal reversed Dreyfus’s conviction and finally proclaimed him innocent; on July 21, in recognition of all he had been through, Dreyfus was made a Chevalier of the Legion of Honor in a ceremony held at the Ecole Militaire. In response to cheers of “Vive Dreyfus!”, Dreyfus famously responded, “No, gentlemen, I beg of you. Vive la France!”
The Dreyfus Affair is a story about an egregious abuse of the legal system, driven primarily by a powerful current of French antisemitism and by a desire to shield the French military from its own mistakes. It involves procedurally flawed court-martials, secret evidence, conspiracies, theft of government secrets, deportation to a brutal island prison, leaks to the press, leak prosecutions, riots by antisemitic mobs, and a cover-up and whitewash perpetrated at the highest levels of the French military. As that list should indicate, the affair is ripe with allegorical potential, for all sorts of different purposes, but Americans aren’t very familiar with it.
July 21, 2006 at 11:58 am
Posted in: History of Law
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Claim of Unilateral Mistake Confers Right to Repossess Non-Financed Car?
posted by Bruce Boyden
A quick contracts/property/tort/consumer law hypothetical for incoming first-year law students (and their professors) to ponder over:
Car dealer sells a used pick-up truck to Buyer for $8,100 and a trade-in. Buyer pays the full amount by personal check and drives the truck off the lot. Dealer then calls Buyer at home and tells him that they looked up the wrong number in their book; the truck actually costs $10,000 more. Dealer tells Buyer that either he has to return the car and they’ll pay him $500 for his trouble, or he needs to cough up the extra $10,000. Buyer refuses.
In the middle of the night, the Dealer comes and “repossesses” the truck from Buyer’s driveway. Buyer’s trade-in is returned to him. Buyer’s check is not cashed.
Dealer claims that the contract was invalid because “one party ma[de] a mistake, and the other party knew or should have known that a mistake was made.” (See here for more details from WTVF-Nashville, and note the video link on the upper right. The file-dropping bit seems right off the Daily Show.) Assume that the Blue Book value of the truck is $21,240, and the trade-in was worth only a nominal amount.
Discuss; was there a valid contract? What claims does Buyer have, and even more important, what remedies should he get?
(HT: Consumerist)
July 21, 2006 at 12:22 am
Posted in: Consumer Protection Law, Contract Law & Beyond
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Don’t Write Angry!
posted by Bruce Boyden
Way too much writing about copyright issues is done by first, allowing your blood pressure and heart rate to rise as high as possible, and then second doing your entire article (or blog comment) in “steamed” mode. This tends to lead to not-so-insightful analysis. An example appeared in this morning’s Washington Post in Steven Pearlstein’s article, “A Sound Marketplace For Recorded Music,” which focuses (eventually) on the record labels’ lawsuit filed last month against XM Satellite Radio.
The RIAA complaint alleges that XM’s new “XM + MP3″ service, which transmits to XM’s associated “Inno” receiver, falls outside the statutory license provisions for digital music transmissions and therefore violates the Copyright Act. There’s some interesting issues there, but they’re hard to glean from Pearlstein’s article.
First, Pearlstein makes the standard swipes at “monopolists” shutting down “innovation.” This isn’t much more illuminating than the standard rhetoric from large copyright owners, that “pirates” are destroying incentives. It gets very murky when you realize that “innovation” and “piracy” are not distinct categories — you can have innovative pirates. Whether a given service is or should be legal can’t be determined based on these labels, unless you’re an extremist.
July 19, 2006 at 3:14 pm
Posted in: Intellectual Property
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Video Games as Art?
posted by Bruce Boyden
So I’m listening to one of my favorite soundtracks — from the game, Half-Life. Video games are becoming more and more like cinematic experiences. (In many cases, they are being converted into really bad cinematic experiences, such as the Doom movie or Alone in the Dark, but that’s not my point right now.) In addition to soundtracks, video games like Half-Life have plots, scenes, characters, and dialog. A lot of this is rudimentary — the dialog, for example, is pretty limited, and character development is sparse — but it adds a level of depth and complexity to games that only recently were as simple as Space Invaders.
Still, as Roger Ebert pointed out last year, it’s silly to think they rival movies as story-telling formats:
“[V]ideo games [are] inherently inferior to film and literature. There is a structural reason for that: Video games by their nature require player choices, which is the opposite of the strategy of serious film and literature, which requires authorial control.”
Ebert got a lot of hate-mail from gamers for this comment, but I think he’s essentially correct that games are inferior story-telling devices, at least given today’s technology. The more interesting question is whether the loss of “authorial control” that Ebert correctly ascribes as the fundamental difference between a game and a movie makes games “inherently inferior” as narrative devices.
Half-Life and Half-Life 2 illustrate both my points and Ebert’s.
July 18, 2006 at 4:06 pm
Posted in: Culture, Technology
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Red Herrings in the Defense of Liberty Are No Vice
posted by Bruce Boyden
Today’s Washington Post contains an article on the upcoming congressional debate over the procedures to try Guantanamo enemy combatants that features this trope that I’ve seen or heard several times in the past few days:
“I don’t want a soldier when he kicks down a door in a hut in Afghanistan searching for Osama bin Laden to have to worry about . . . whether he’s got to advise them of some rights before he takes a statement,” [DOD Dep. GC Daniel] Dell’Orto said. “I don’t want him to have to worry about filling out some form that is going to support the chain of custody when he picks up a laptop computer that has the contact information for all manner of cells around the world, while he’s still looking over his shoulder to see whether there’s not an enemy coming in after him.”
House Armed Services Committee Chairman Duncan Hunter says the same thing later in the article, and Sen. John Cornyn repeated that idea on Tuesday on the NewsHour. My question: Where is this idea coming from? There’s nothing in the Hamdan decision, as far as I can tell, that even remotely touches on domestic criminal procedure rights being applied to the battlefield. If I’m reading Hamdan correctly, this is beyond a slippery slope argument, it’s digging a trench and then pointing to the slope.
July 13, 2006 at 10:13 am
Posted in: Constitutional Law
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There Goes the Times Again
posted by Bruce Boyden
The paper of record has published the locations of several key terrorist targets in the United States. Will they never learn? We’re at war! The Mule Day Parade, the Sweetwater Flea Market, and the “Beach at End of a Street” are all in jeopardy now. As the Snidely-Whiplash-type Cuban terrorist says in Invasion: USA, “They make it so easy.”
July 12, 2006 at 12:42 pm
Posted in: Privacy (National Security)
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Cyberspace as Marchland
posted by Bruce Boyden
The picture I provided to Dan for his introductory post was taken at South Point on the Big Island of Hawaii, which my wife and I visited last month on our honeymoon. South Point is, as the name implies, the southernmost point on the Big Island and therefore the southernmost point in the United States. It is accessible only via an 11-mile-long, one-lane, barely paved road that cuts directly through a sparsely inhabited, windswept plain to the ocean. At the end of the road, the only signs of life are the makeshift parking lot for visitors, a nondescript navigational beacon, and a rickety pair of boat launches. The area is as isolated as it looks. Although other parts of the island are booming, particularly the area around Kona, the south side of the island, and South Point in particular, has been left behind. The guide books all warn against paying for parking at the nearby “Visitor’s Center;” in fact it is an abandoned building, and the people charging are squatters, not state employees. The proprietor at one of the B&B’s we stayed at told us that people go to live at South Point when they don’t want to be found.
The area is also littered with the remains of failed business ventures. One of the more spectacular of these is the wind farm just north of South Point, pictured above. I have no idea who built the wind farm, or why. But there are now several dozen wind mills standing in various states of disrepair. A few still spin, making a plaintive low whistle that you can listen to if you stop the car and turn the engine off (your entertainment mileage may vary). Most are rusted in place. Several have one or more blades missing. The scene reminded me of what Shelley must have had in mind when he wrote Ozymandias, thinking of Luxor and knowing little of ancient Egypt’s history:
“My name is Ozymandias, king of kings:
Look on my works, ye mighty, and despair!”
Nothing beside remains: round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.
The whole thing strikes me as an apt metaphor for cyberspace. Getting there requires tying South Point and Ozymandias to colonial America, turbulence, the Gunfight at the O.K. Corral, and peer-to-peer filesharing.
July 11, 2006 at 11:41 am
Posted in: History of Law, Technology
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When Do Judges Get to Use Judgement in Interpreting a Statute?
posted by Bruce Boyden
Via How Appealing comes an interesting statutory interpretation issue: in reading a statute, what does a court do with outcomes that are required by the plain language of the statute, but that Congress may not have intended? According to Judge Boudin on behalf of a unanimous First Circuit panel ten years ago, the answer is that the court should intervene when it “is patent that Congress as a whole did not appreciate the great variety and complexity of state provisions that would have to be meshed with the new federal statute or the odd results that would follow.” But according to a decision written by Judge Easterbrook and issued yesterday by a unanimous Seventh Circuit panel, the answer is that the court should intervene only when the “statute is … absurd as written;” that is, if its text does not “parse[ ]” or there is “linguistic garble.” “The canon [of absurdity] is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce.”
The statute at issue in both cases is the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
July 7, 2006 at 11:42 am
Posted in: Criminal Law
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NY Court of Appeals Decides Same-Sex Marriage Case
posted by Bruce Boyden
New York’s highest court handed down its eagerly anticipated decision in Hernandez v. Robles this morning. The court first decided that New York statutes did in fact limit marriage to opposite-sex couples, then proceeded to analyze that restriction under a rational basis test, defining the relevant right as not the right to marry a person of one’s choosing, but “[t]he right to marry someone of the same sex.” It found that the New York legislature could have had rational bases for drawing a line between opposite-sex and same-sex couples:
July 6, 2006 at 11:07 am
Posted in: Civil Rights, Current Events
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Our Founding Fruitcakes?
posted by Bruce Boyden
Hello! I’m excited to try this whole blogging thing from the other side of the comment line. Thanks to everyone at Concurring Opinions (Co-Op? Con-Op?) for letting me visit for a bit.
My research at the moment focuses on copyright and content protection (a/k/a DRM), but I thought I’d start off with one of my other loves, history. (If academics are divided between hedgehogs and foxes — “The fox knows many things, but the hedgehog knows one big thing” — I’m definitely more of a fox.) And what more appropriate topic, given the recent July 4th holiday, than the Founding and what it means for constitutional interpretation.
Lawyers tend to revere the Founding as a magical moment of almost perfect democracy. Obviously, most are aware that many of the Founders owned slaves, and that suffrage was limited to white male property holders. But the Founders created a democratic nation that has lasted and thrived for over two centuries, and it seems reasonable to attribute to them some special wisdom and foresight in establishing a political culture and a government that would withstand the whips and scorns of time.
I’m not saying that’s wrong, exactly. But it is interesting to go back and look at what was actually motivating the revolutionaries in that “magical moment,” and to discover them saying some things that make them look positively bonkers. What does that mean about the significance we should attach to what the Founders thought about anything? For example, should we continue to take the Founders’ fear of executive power seriously?
July 5, 2006 at 5:09 pm
Posted in: Constitutional Law, History of Law
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