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Author: Joseph Liu


Goodbye and Thanks!

Thanks so much to Dan, Kaimi, Nate and Dave for inviting me to participate on this wonderful blog. I couldn’t have asked for a better introduction to the world of blogging, or a friendlier or more supportive group of (virtual) colleagues. I had hoped to end with a flurry of posts, but my plans were side-tracked by both the aftermath of the appointments conference and a nasty cold (hard to say which was worse). But never fear – I’ll continue to be a regular reader and make my presence felt in the comments. Bye, and thanks again!


Grokster R.I.P.

grokster.gif The recent news of the Grokster settlement has generated only modest discussion, and I suppose that’s not surprising. The Supreme Court’s decision in the case came out months ago, and the big open questions left by that decision are unaffected by the settlement. Moreover, there appeared to be sufficient evidence in the record of “actual inducement” to make Grokster’s shut-down unsurprising.

Still, I would note that, according to the reports, the recording industry got Grokster to agree to pay $50 million in damages, even though they don’t expect to be able to collect. This gives the industry a big number it can use to deter future such technologies, and it’s consistent with the broader strategy of publicly signalling (through public announcements, lawsuits against end-users, education efforts, and even movie previews) that these activities are, in the industry’s view, infringing.

To some extent, this is the flip side of an earlier post I made about information regarding fair use rights. Just as some would like individuals to have greater information about their fair use rights, the copyright industries would like users to have greater information about the restrictions imposed by copyright. (Jason Mazzone has an interesting proposal about what to do when the industry overstates such restrictions).

All of this is to suggest that there seems to be a need to give individuals clearer and better information about what they can or can’t do under the copyright laws.


Fantasy Law School League

Folks have joked about the idea of running a “Fantasy Law School” league (a la a fantasy football league) for some time now. But the recently-posted Leiter rankings, combined with USNews and a wealth of statistics (pseudo and otherwise), indicate that we are entering a brave new era in the evaluation of law school quality and talent. No more fuzzy and impressionistic scouting of talent; bring on the new and more scientific “Moneyball” approach. Herewith, some proposed rules (comments and suggestions welcome):

1. Season: 1 year, starting Sep. 1

2. Maximum 10 law schools per league, 15 law professors per school.

3. Required positions: Dean, Contracts, Property, Torts, Civil Procedure, Criminal Law, Constitutional Law, Corporations, Evidence, Tax, Junior Faculty Member (less than 5 years), Student Body (pick school). Remaining positions are optional, but must be in different subject matters. Subject matter positions are for teaching, and may be completely disconnected from research.

4. Statistics:

(a) donations: $200k = 1 point.

(b) citations: 1 cite in Westlaw’s JLR or SCT = 1 point.

(c) ssrn downloads: 10 downloads = 1 point. (gaming of downloads will result in forfeit).

(d) law review articles: top-10 journal = 10 points. 10-30 journal = 5 points. remaining = 1 point.

(e) books: top-5 academic press = 20 points. casebook, new = 10 points, new edition = 5 points. all others = 1 point.

(f) entering class median LSAT: 170-180 = 10 points, 165-170 = 5 points, 160-165 = 1 point.

(g) entering class median GPA: 3.8-4.0 = 10 points, 3.6-3.8 = 5 points, 3.4-3.6 – 1 point.

(h) blogging: 20 posts = 0 points. 40 posts or more = -1 point.

5. Multiplier: points will be doubled for junior faculty (under 5 years)

6. Draft: date: August 1. random initial order, S-draft (e.g. first round: 1,2,3 … second round: 10,9,8 …).

7. Trades: no limits on number of trades. trades may be vetoed w/in 2 days by vote of 50% of other players.

8. Waivers: players may pick up unclaimed professors at any time, subject to maximum professor limit.

Now if only we could get someone to write a program to track this …


What Next, Google Filmstrips?

I use audio-visual materials pretty extensively in my intellectual property classes, but I never thought to use them for my first-year property class. That is, until this year.

Google Maps and Google Images have made it possible to illustrate property disputes in a way I never could have before. Take, for example, the classic case, Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., involving two hotels on Miami Beach. The Fontainebleau starts building a 14-storey addition which will cast a shadow over the neighboring Eden Roc’s pool and beach area.

Here’s a picture from Google Maps, showing the shadow (imagine the shadow slowly moving clockwise as the sun crosses the sky, eventually covering the Eden Roc’s pool area):


On the continuation page, you can also see a picture from a different perspective.

Every year, it seems I rely more and more on some kind of tool created by Google (whether Search, GMail, Images, Maps, whatever). Yet another sign that Google is taking over the world.

UPDATE: I should note that credit for finding the above picture goes to the very tech-savvy Michelle Kanter, BCLS class of ’08.

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Law Professors and Consulting

A question for lawprofs out there: what role, if any, does consulting play in your life as a professor? My sense is that lawprofs have widely diverging experiences on this score, and I’d be interested in hearing about some of them.

Because of the whole tenure-thing, I’ve made very little time for consulting. Yet on a couple of occasions, I’ve helped out on litigation raising interesting issues in my area of expertise. And those experiences have, on the whole, been extremely positive, informing my understanding of these areas in important ways (and sometimes helping to pay the bills, to boot).

Yet this has largely been the result of happenstance, without any concrete plan. Do other folks approach this more systematically? What considerations go into deciding whether to consult? Do you view consulting as an integral part of your research agenda? Or more like a side-activity?


Who Pays for the Law?

A couple of posts discussing the Google Print case have mentioned how they see it as an opportunity to get a court decision clarifying the scope of fair use on line. This makes me wonder: is there a public goods problem with respect to fair use law itself?

Fair use is notoriously fuzzy. Judicial opinions reduce the fuzziness somewhat by providing additional data points. These opinions benefit a wide range of parties by providing them with more guidance. Yet the cost of producing a ruling is borne largely by the private parties engaging in the litigation. So, in theory, will the existing system under-produce fair use law?

Perhaps it’s not meaningful to talk about an “optimal” level of legal guidance. But it remains the case that: (a) many potential fair users (particularly small-scale users) operate with insufficient guidance about what constitutes fair use; and (b) these folks are dependent upon large companies like Google being willing to litigate these (or analogous) issues to a decision.

So, if we want more clarity regarding the scope of fair use, how do we best produce it? Should we somehow subsidize fair use litigation (for example, by fee-shifting)? Or should we rely on a regulatory mechanism, like fair use regulations promulgated by the copyright office? (Michael Carroll of Villanova has a very interesting draft, proposing an administrative solution). Or are we comfortable with the existing level of guidance?

I assume this issue is not unique to copyright, and would be interested to find out whether other areas of the law have adopted responses to this.


Death of the Casebook?


Predictions about the death of the book have so far been premature and it’s not hard to see why. Books are a very nice technology. Portable, durable, easy-to-read, stable – people like books, and they aren’t going away any time soon.

But what about casebooks? They’re heavy, inconvenient, not terribly portable – and no one really has warm fuzzy feelings about curling up with the latest edition of Gunther. (Co-Blogger Nate may be an exception). Can we safely make a prediction about the death (or at least transformation) of the casebook?

I can see a number of advantages to a purely electronic casebook: (1) weight, or lack thereof (bits are light); (2) ease of updating (no more supplements); (3) customizability (no need to buy all those extra chapters); (4) ability for students to cut and paste into outlines; (5) multimedia, etc.

I can also see several disadvantages: (1) lack of access to computers; (2) dislike of reading material on a computer screen; (3) lack of portability. But it seems to me that two of these disadvantages are becoming less significant as (1) computers become ubiquitous in law school; and (2) people seem increasingly comfortable reading material off of computer screens.

So, is anyone ready to predict the death of the casebook? Are we stuck with casebooks? Or is there some interesting hybrid we should be looking forward to? (Note this is not a purely disinterested question, as I’m currently working on a casebook).


Google & Grokster


Being new to the blogosphere, I missed out on the initial round of comments on the pending litigation between the Authors Guild and Google over Google Print, Google’s effort to create a searchable database of print books. My sympathies tend to be with Google, as I have yet to see a strong, non-circular argument that authors would be economically harmed by Google Print (at least as I have heard it described).

But even if you believe, as do I, that Google’s activities are or should be fair use, there’s an interesting separate question re: what efforts, if any, Google should be obligated to take to keep the digitized books secure from third parties. For example, what if third parties could use Google Print to easily reconstruct full digital versions of print books (e.g. by sending a series of overlapping queries to Google Print and reassembling the search results)?

Presumably, Google could implement all sorts of technical measures to make this kind of activity more difficult (and indeed, there is some indication that it has implemented them). But what if it didn’t implement any of these measures? Should it be obligated to?

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eBay and Unfortunate Wardrobe Choices

Thanks to Dan, Kaimi & Nate for inviting me to guest blog this week. I feel a bit like I’ve been tossed the keys to a fancy sports car (one with lots of cool gadgets!), and so I alternate between a desire to floor it and a fear of driving into a telephone pole.

ebay.gif On that note, let me start with a weighty post on how eBay is making the world more efficient by freeing up articles of clothing that would otherwise remain consigned to the backs of closets everywhere. See, for example, the following auction for “DKNY Men’s Leather Pants I Unfortunately Own“:

You are bidding on a mistake.

We all make mistakes. We date the wrong people for too long. We chew gum with our mouths open. We say inappropriate things in front of grandma.

And we buy leather pants.

Click here to see the rest of the auction text.