Author Archive for william-mcgeveran
Exam Characters
posted by William McGeveran
So far in my two short years as a professor, I have tended to use the common practice of drawing on figures from pop culture for the names and basic features of the characters in issue-spotting exam questions. For example, I’ve asked questions about a student named Harry Potter at a college called Hogwarts, a fellow named Cosmo who runs a company called Kramerica, and a Hollywood agent named Ari who manages a movie star named Vince.
The other day, one of my civil procedure students asked very politely if I would be willing to identify for the students, in advance, any pop culture characters featured in the upcoming exam. I thought about it and then said no, mostly because I was afraid that some of her classmates would then run out and watch Seinfeld reruns or whatever rather than studying the Erie doctrine. I also thought such an announcement would greatly overemphasize the importance of this fictional backdrop, which should be trivial. The facts are all right there in the question, and they often depart entirely from the book or TV show that inspired them. (Of course, it goes without saying that an exam question must not assume any knowledge of the source material.)
But the student’s request got me thinking about whether using pop culture sources for exam questions is a good idea. On balance, I still think it is at least harmless and probably useful. True, students who happen to be familiar with the characters may have a slightly easier time keeping the fact pattern straight, and maybe that is slightly unfair. But it is such a miniscule advantage. And unavoidably there is lots of luck in exams — if a question happens to resemble one you studied, that is a much bigger advantage than knowing about Harry Potter. Meanwhile, a well-chosen set of characters probably helps the bulk of students to digest the facts, and it definitely helps me keep the fact pattern straight as I carefully read 100 answers. Besides, it can provide a little comfort and perhaps a smile to at least some students during the stress of an exam. Those who are oblivious to the cultural references can just ignore them.
There are other ways to write fact patterns, of course. Bar exams seem to draw on lists of obscure first names, almost like the roster of hurricane names. One of my colleagues puts her acquaintances into exams, and every year one particular friend dies a gruesome death. I will never forget a first-year professor of mine who populated his exam with multisyllabic figures from Greek tragedies, whose names all sounded alike to me (and many began with the same letters too!).
Law professors and students: what do you think?
May 13, 2008 at 10:43 pm
Posted in: Law School (Teaching)
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Controversy at MLK Memorial
posted by William McGeveran
The process of building a new memorial in Washington, DC always creates controversy. The forthcoming Martin Luther King Jr., National Memorial is no exception. The U.S. Commission of Fine Arts, which has veto power over the design, recently announced its objections to a model of the mammoth statue planned as a centerpiece of the site. The statue, at 28 feet intended to be significantly taller than Lincoln’s at his memorial, depicts Dr. King standing with his arms folded and a very serious expression on his face (see the model here). In a breathtakingly terrible choice of words, the Commission worried that the statute so envisioned is too “confrontational in character.”
This objection comes on top of earlier protests at the choice of a Chinese sculptor, Lei Yixin — some saying that a black person or at least an American should design the statue; others criticizing the use of Chinese granite instead of the good ol’ American kind, and others objecting that some of Lei’s earlier work celebrates Mao Zedong.
The new criticism claims to be aesthetic rather than political, but the two are so fundamentally intertwined in this setting that art cannot distinguish itself from politics. Take, for instance, the following from a Washington Post blogger:
May 13, 2008 at 5:00 am
Posted in: Architecture, Civil Rights, Current Events
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Payless and the Terrible, Horrible, No Good, Very Bad Day
posted by William McGeveran
The Oregonian reports that Adidas won an astronomical $305 million trademark infringement verdict against discount retailer Payless Shoes this morning. Trademark blogger Marty Schwimmer can’t think of another infringement verdict even close to this size, and neither can I. Most trademark litigators would consider any case worth more than $25 million a very big one.
Payless lost most of its key legal arguments in a set of pretrial rulings back in February, as Rebecca Tushnet explained at the time. But even if one might have predicted an Adidas victory at that point, I think its magnitude is pretty surprising. It doesn’t look like this award is vulnerable to a due process attack in the vein of BMW v. Gore and State Farm, however, because the punitive damages appear to have been calculated to represent double the Payless profits attributable to the infringement ($30.6 million in actual damages, $137 million in profits, and $137 million in punitive damages). In those cases, by contrast, the ratio of punitive to actual damages was many times greater (145:1 in State Farm).
The dispute centers on 268 different Payless sneakers with parallel stripes. (Images here.) Adidas has a trademark for three parallel stripes on the side of a shoe. The jury found that all but one of the Payless versions, with various numbers of stripes on the side, infringed on that trademark.
Some might consider those stripes a pretty basic aspect of sneakers. I remember all my sneakers as a kid looking like that, and I think they were usually Keds. Indeed, one of my 4-year-old daughter’s favorite books, Alexander and the Terrible, Horrible, No Good, Very Bad Day, written in 1972, illustrates the point very nicely (sign into Amazon here for the image):
So then we went to the shoestore to buy some sneakers. Anthony chose white ones with blue stripes. Nick chose red ones with white stripes. I chose blue ones with red stripes but then the shoe man said, We’re all sold out. They made me buy plain old white ones, but they can’t make me wear them. … It was a terrible, horrible, no good, very bad day.
I think the Payless attorneys know just how you feel, Alexander. (”The jury found that stripes on sneakers identify Adidas as their source in the public mind, and I still have to pay the lawyers, and now we have to file the post-verdict motion to set aside the damages and then the appeal. And I have to wear my railroad train pajamas, and I hate my railroad train pajamas.”)
[Cross-posted on Info/Law]
May 6, 2008 at 4:02 pm
Posted in: Uncategorized
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Crawford and ID Creep
posted by William McGeveran
Thanks to the Concurring Opinions gang for inviting me back for another visit!
I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog’s Lyle Deniston — among many, many others — to talk about the important election law elements of Monday’s Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.
Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana’s identification requirements placed (or didn’t place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.
What about privacy burdens?
April 29, 2008 at 10:46 pm
Posted in: Privacy, Supreme Court
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Internet Filtering Mandates on Campus
posted by William McGeveran
Earlier this summer I spoke at the Institute for Computer Policy and Law, a workshop for professionals responsible for IT infrastructure in higher education. They were all abuzz about a campaign this spring and summer by the RIAA to target colleges and universities and demand that they take more actions to curb illegal downloading by their students. In particular, a just-defeated Senate amendment to the Higher Education Reauthorization Act would have required that colleges and universities install certain forms of DRM and filtering technology on their networks to catch students infringing copyright law through illegal downloading. The amendment also envisioned federal government publication of a list of the 25 colleges and universities that received the most infringement notices from the content industries — not exactly an unbiased metric! (Technically, these were framed as conditions for federal funds, but effectively they’re mandates given the importance of federal money in higher ed, as we know from other contexts.) The amendment’s author, Senate Majority Leader Harry Reid, withdrew it in the face of sharp criticism. But the base bill will be considered in the House this fall (where there have already been hearings on the issue) and everyone expects the same amendment to be back.
I recognize that illegal downloading is illegal and I think schools absolutely should take steps to stop their students from doing it. But there’s two problems with the Reid approach.
First, DRM and filtering technology has the double-whammy of being really expensive and burdensome to install properly on one hand and frequently ineffective on the other. The problems can include interfering with P2P technology that has legitimate and innovative educational purposes. And of course Congress is not offering any extra money to help with meeting this new requirement.
Second, as this great op-ed by Kenneth Green explains, targeting colleges and universities for this problem is obnoxious, because they account for a very small percentage of all illegal downloading and they are already doing a lot, as institutions, to curb it. Most of this infringement happens through commercial ISPs, but there is no parallel push to impose technological mandates and reporting requirements on them. These industries, and some in Congress, are just ganging up on higher education. Or, as Green sums up:
We in the campus community are doing more about P2P and digital piracy — and doing it far better — than the consumer broadband ISPs that provide Internet service to more than 45 percent of American households (more than 35 million homes and small businesses). The RIAA’s singleminded focus on college students — and easily inferred threats to campus officials — misses the larger issue: Digital piracy is a consumer market problem, not simply a campus issue.
So, especially if you are a professor or a student, call your representative and tell the House to back off. Then call your own administrators and make sure your campus is (1) acting to oppose this measure and (2) taking responsible steps to combat illegal downloading.
This post ends my extended guest visit in this space, which I’ve enjoyed very much. Thanks to my hosts here for the invite, and to all of you for comments and e-mails. Drop by Info/Law some time. And now I am headed to a cabin on a lake in northern Minnesota — which has no hot water, never mind WiFi — to rest up before the new semester begins!
August 17, 2007 at 1:57 pm
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When the Law Forces You to Sue
posted by William McGeveran
I chuckled when I saw the headline on this AP story in my local St. Paul newspaper last week: Red Cross Sued for Using Red Cross. It’s often pretty easy to make trademark law look silly. (I know because I’ve spent all summer writing an article about it — coming soon to an articles editor in-box near you!). But that headline pretty much sums up the story: Johnson & Johnson has sued the American Red Cross (ARC) over the relief organization’s efforts to license the use of its red plus-sign image on medical products (like this one) that it endorses. J&J claims that it owns exclusive trademark rights to the red cross image when used on such items, and the nonprofit Red Cross can use it only to identify its core good works.
So why is Johnson & Johnson pursuing a lawsuit that gets the company lampooned in the press? And makes it look like a heartless miser? And gets it threatened with boycott? And to top it off, triggers a reaction from their opponent that stokes all those sentiments? Indeed, ARC president Mark Everson even delivered an implicit threat (via a New York Times story) to use its substantial political heft to ask Congress for special preemptive legislation (an entirely plausible scenario, though I wonder if J&J would have a takings claim):
The Red Cross products that J.& J. wants to take away from consumers and have destroyed are those that help Americans get prepared for life’s emergencies,” Mr. Everson said. “I hope that the courts and Congress will not allow Johnson & Johnson to bully the American Red Cross.
Johnson & Johnson protests that the company is a reluctant plaintiff, as its spokesman told the Times:
We deeply regret that it has become necessary to file this complaint. The company has the highest regard for the American Red Cross and its mission.
What gives?
Michael Froomkin has the answer, I think:
August 15, 2007 at 4:34 pm
Posted in: Intellectual Property
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Maintaining Our Personal Bridges
posted by William McGeveran
I live in the Twin Cities, and the Law School where I teach is just a few blocks from the I-35W bridge that collapsed into the Mississippi River last week. (It’s so nearby, in fact, that some of the investigators are using the school building as a temporary headquarters). I am fine and so is everyone I know.
I was touched by the e-mails and phone calls my wife and I got right after the event from friends all around the country, checking in to make sure we all are safe. Some came from people I’ve just met a couple of times at conferences, but they were genuine and concerned. Others were from people who have been among my closest friends. We all have this commendable human impulse to reach out in a crisis. (I have checked with my London friends whenever there is terrorism there, for example.) It reminded me of other times that I’ve been on the receiving end of those “are you OK?” messages. Last year I had serious heart surgery and my wife brought printed e-mail messages (and traditional cards) to the hospital every day and read them to me. I lived in New York City when the World Trade Center was destroyed and hearing supportive words from friends in other places helped put that shattering event in perspective. Of course this is one of the wonderful things about instantaneous but asynchronous telecommunications like e-mail: we can bridge gaps of both geography and time, because my faraway friends can read what I say right away, but we don’t both have to be available at the same time as we would for a phone call.
Yet there is something bittersweet about it. There are so many people in our lives like this: we think of them fondly, we consider them our friends, we always intend to connect with them, but in fact our only real communications come in Christmas cards or concerned messages in the wake of falling bridges and buildings or open-heart surgery. (Perhaps, if we are lucky, there are also the fortuitous “I’m gonna be in town for a conference so let’s have dinner” invitations.) I am resolving to try to do a better job of maintaining the cross-country friendships that matter to me. Not that there’s anything bad about touching base after a catastrophe, but that shouldn’t be the only impetus. It’s so easy to communicate now that I think we take it for granted. Characters in nineteenth-century novels are always scheduling time out of their day to attend to their correspondence. We do nothing so intentional.
And you, dear reader? You are probably looking at this blog because you are procrastinating from doing something else. So, I challenge you: quick, close your eyes and think of someone you’d want to call or e-mail in the wake of a disaster. Then do it, right now, before any other bridges collapse.
[Cross-posted at Info/Law]
August 7, 2007 at 11:06 am
Posted in: Current Events
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Jeffersonian Privilege
posted by William McGeveran
The D.C. Circuit ruled this morning on Rep. William Jefferson’s motion to get back the material seized when the FBI searched his congressional office in the Rayburn House Office Building. As is so often the case, the early AP story on the decision sort of missed the boat. It was headlined “Court: FBI Violated Constitution in Raid.” But the actual holding is quite limited. Jefferson gets back originals and copies of all legislative materials, but not anything non-privileged. The court also deferred any decisions about usability of any of that non-privileged material at Jefferson’s upcoming bribery trial; the district court will make that determination in the first instance.
So, the impact for the future seems to be that the Executive can search congressional offices with a warrant, and can do so without tipping off a legislator in advance (potentially allowing destruction of evidence). The only difference is that the Member of Congress has to be there during the search and is permitted to assert his privilege under the Speech and Debate Clause “before the Executive scour[s] his records.” (Slip op. at 15.) I’ll be keen to hear what the real experts on separation of powers think of this opinion.
It is also interesting to contemplate how this apparently narrow practical scope of the legislative branch privilege contrasts with the assertion of executive privilege over the U.S. Attorney firings and related matters.
August 3, 2007 at 12:29 pm
Posted in: Constitutional Law, Criminal Procedure, Current Events, Politics
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Harry Potter and the Legal Scholarship Boomlet
posted by William McGeveran
In a comment responding to my recent observations about due process in the world of Harry Potter, Jennifer Hendricks drew my attention to a paper by her colleague, Ben Barton (see Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006)). The paper is pretty good (and a great read!) although I think he somewhat overstates the extent to which the Ministry of Magic represents a libertarian-oriented critique of all government. (Without revealing too much about the plot of Book Seven — published after his paper — I think I can say that some of the problems at the Ministry are the work of malicious Death Eaters, not public choice theory. Unless, I suppose, you consider the Death Eaters stand-ins for special interests.)
Looking up that paper, I soon found a whole vein of “Law and Harry Potter” scholarship, stretching far past my original theme of due process. An SSRN search on “Harry Potter” in titles and abstracts identified 11 papers, and Westlaw found others. There is work on agency law in Harry Potter and a piece by two economists from Bar Ilan University about the “Potterian economic model.” Another paper inquires into whether the fixation requirement of copyright law would apply to portraits made by wizards, since the subjects of these paintings continue to move around, often speak, and sometimes leave the confines of their frames. Then there’s this collection of essays published in the Texas Wesleyan Law Review.
My favorite, though, was this one, Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World. It’s the classic law review gambit: exhaustive study of a narrower topic which then enables a broader observation. Even the title, colon and all, is perfect. From the abstract:
This article attempts to examine the problems with the wizarding word’s legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death.
There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry’s world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry’s regime as well as under relevant British (Muggle) and international law.
As Larry Solum might say, download it while it’s hot! Meanwhile, I am starting to think maybe this whole Empirical Legal Studies thing could just be a fad, about to be displaced by “Potterian legal reasoning.”
[Cross-posted at Info/Law]
August 2, 2007 at 10:08 pm
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Harry Potter and the Due Process Clause
posted by William McGeveran
Don’t worry, no spoilers here.
I stayed up way past my bedtime last night finishing the final Harry Potter book. I found it very satisfying. But this is a law blog, and I am a geeky law professor, so the phenomenon I will note is how extensively these books develop the theme of procedural fairness — a marvelous lesson for the children who are its target audience.
Time and again throughout the series, the Ministry of Magic that rules wizards in England falls far short of what we would consider the minimum of due process. There are repeated sham hearings that have the trappings of even-handed court proceedings, but they are rigged and hollow. In an earlier book (Harry Potter and the Order of the Phoenix, also the movie currently playing in theaters), Harry himself is accused of an infraction against wizarding rules; the Minister abruptly changes the time for his hearing before the Wizengamot — a sort of legislature with judicial functions, it seems — hoping that Harry’s principal advocate, the wise Albus Dumbledore, will miss it. The same phenomenon happens constantly at Hogwarts, the wizarding school. Various teachers and headmasters make arbitrary and capricious decisions and issue unjust punishments.
Sometimes this sort of unfairness is perpetrated by the clear bad guys, the evil followers of the story’s villain, Voldemort. More often, however, leaders of the Ministry of Magic or of Hogwarts are simply acting bureaucratically. They may not support Voldemort at all, but they treasure form over substance and obedience to the letter of the rules rather than any adherence to its spirit. Most of all they seek to preserve their own power against perceived threats — often petty threats far less serious than the real dangers posed by Voldemort’s followers. The fact that there is an official hearing, an examination of witnesses, and a vote provides no guarantee of substantial fairness.
Early in the first semester of my civil procedure course I plan to have the students read the classic procedural due process cases (Goldberg and Mathews) and think about the attributes that do — and should — constitute fair procedure. I think I will use the Harry Potter books as an example.
August 1, 2007 at 5:15 pm
Posted in: Articles and Books, Civil Procedure, Constitutional Law, Culture
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Weekly World News, R.I.P.
posted by William McGeveran
Sad news from the supermarket checkout line the other day: Weekly World News is ceasing production. (Hat tip: Threat Level). Now that the National Enquirer and Star have moved slightly upmarket to reach the bottom rung of the celebrity gossip ladder, just below InTouch and Hello! (and not all that far from People and Us Weekly), WWN was the sole survivor of the old “supermarket tabloid” realm. It was also unique in its cheerful and utter fabrication of ridiculous stories (as opposed to the slightly surreptitious and partial fabrication at the other tabloids). A bizarrely comprehensive Wikipedia entry captures the full range of its odd topics, from Bat-Boy to UFOs. I also fondly remember the woman who was electrocuted by static cling.
There is a famous WWN story in my family: my little brother, aged 8 or 9, burst into the apartment after an errand to the grocery store. “Mom! Mom!” he shouted. “They’ve found mermaids off the Catalina coast!” Brief cross-examination uncovered the source of his news, and he was crestfallen and a little mystified when my mother explained the fuller media context. That story always makes me a little sad — a young boy’s loss of innocence. (This was not, I probably should add, the brother who became a newspaper editor.)
It was the internet that killed WWN, I assume. Why wait for a weekly dead-tree dose of weirdness when a tsunami of similar free content awaited at all times, and without all that smudgy ink to boot? WWN’s own web site launched too late and it no longer stood out in that vast ocean the way it did while you waited for the cashier to finish bagging groceries for the guy in front of you. Besides, over time tastes in fake news moved on from the WWN formula of [(John Waters x Bill O'Reilly) + The X Files] to detached, ironic, decidedly more left-leaning and upmarket venues such as the Onion and the Daily Show. The Weekly World News retained the air of a slightly disturbed old guy with a handshake buzzer and a fair amount of actual paranoia and credulousness. But still a really sweet guy. I love Jon Stewart, but you sure can’t say that about him.
July 27, 2007 at 4:31 pm
Posted in: Culture, Current Events, Weird
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Teaching Non-Lawyers
posted by William McGeveran
In the last few days I’ve been at two gigs involving teaching about law to non-lawyers. It is an eye-opening and highly recommended experience.
Last week I was on the faculty of the annual Summer Doctoral Programme sponsored by the Oxford Internet Institute and this year hosted in the U.S. by the Berkman Center at Harvard Law School. (That’s “Programme” as they spell it and “Center” as we spell it.) SDP is an intensive two-week seminar for doctoral candidates from all over the world studying the internet through a range of methodological approaches and disciplinary perspectives. Almost none are lawyers. This week I taught cyberlaw topics at the annual Institute for Computer Policy and Law, cosponsored by Cornell University and EDUCAUSE. It’s aimed at professionals responsible for IT infrastructure in higher education, mostly librarian-types and computer-types. Again, few are lawyers.
Teaching in these settings is quite different from doing it in law school or presenting Continuing Legal Education courses to practicing lawyers, which I’ve also done. Among the fun challenges: my audiences in these two venues knew quite a lot about specific law applicable to their field. A doctoral student studying the social construction of privacy thinks deeply about its legal construction. A techie who runs course management software for a university has learned a lot of copyright rules. But they were not always familiar with basic legal concepts like the difference between statutory, judge-made, and regulatory law, or the interplay between state and federal requirements. More importantly, some of what they thought they knew was wrong. And there were some huge gaps. For example, I discovered that very few attending the higher ed IT event knew about 47 U.S.C. 230, a crucial immunity provision that generally protects from liability those who provide open online fora for user contributions, as many of their schools do (recent cases involve everyone from MySpace to Wikipedia). Finding the right level of specificity without assuming too much (correct) background knowledge was tricky.
Another challenge is finding reading material that is sophisticated yet accessible. Many cases are fine, especially if you edit them to cut out procedural folderol irrelevant to your main point. But appropriate secondary analysis is hard to come by. Most short summaries are too facile for these crowds. But most legal scholarship ventures way too far in the other direction. For the privacy session, I used Privacy in Atlantis, a great journal article by Jerry Kang and Benedikt Buchner in the form of an imaginary and sometimes humorous Socratic dialogue about the definition of privacy. For the IT folks, I used Larry Lessig’s Code (Version 2.0) and also told them about James Gibson’s sharp analysis of doctrinal feedback in IP law from the Yale Law Journal this spring. (Gibson’s punchy prose and straightforward presentation made it highly quotable, and I hope many in the audience will now go back and read the whole piece)
When the audience is composed of legal academics, lawyers, or law students, there are comfortable assumptions and expectations. Teaching non-lawyers can keep us on our toes. (Blogging has some of the same positive effect.) Overall, the experience was a great antitdote to excessive retreat into the shell of legal academia. And now I can return, refreshed, to my natural summer habitat, crafting law review prose.
[Cross-posted at Info/Law]
July 25, 2007 at 11:50 am
Posted in: Intellectual Property, Law School (Scholarship), Law School (Teaching), Privacy
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Sex, Laws, and Videotape (Genarlow WIlson Edition)
posted by William McGeveran
Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year’s Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence “a grave miscarriage of justice,” but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.
Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge’s proper role in such circumstances. But I am going to focus on an information law angle — specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?
July 17, 2007 at 12:05 pm
Posted in: Civil Procedure, Criminal Law, Current Events, Feminism and Gender, First Amendment, Privacy, Race
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Square Tables
posted by William McGeveran
I presented my work in progress to my colleagues at the University of Minnesota Law School at this week’s “Square Table” lunch. If you teach at a school that doesn’t have one of these series, you should start one.
Every Wednesday during the summer, faculty gather for lunch and we have a short informal presentation followed by discussion. It’s held over at the campus center rather than the Law School building to get us out of our little cave (and get some different food too). Sometimes the discussion will center on a recent major case or some aspect of teaching methods, but usually it is a true “work in progress” presentation — a constructive critical audience for the speaker to try out a new paper, even if (like mine) it still exists more in your head and in your scrawled notes than in formal drafted form. I think the event’s peculiar name just originates from the fact that the tables in the room where it occurs aren’t round, although the format is. (Actually, they are rectangular tables, but never mind.)
The advantages are numerous. For the speaker, it is a chance to get feedback from a broader group much earlier than would be appropriate in more public fora such as SSRN or most “WIP” conferences. It also served as a mid-summer deadline to get my thoughts in order, useful for one’s self-discipline. Most important, it benefits the whole faculty to have a weekly event during the otherwise unstructured summer when many of those who are not traveling or otherwise engaged gather. It’s a chance to see one another, be less isolated, build community, exchange ideas. And the lure of decent free lunch helps get that attendance up.
This is only my second summer on the faculty but the tradition doesn’t date back much longer. I know lots of schools have something similar, but maybe a little less organized. This regularly-scheduled format seems popular here.
July 13, 2007 at 3:07 pm
Posted in: Law School, Law School (Scholarship)
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Smug Alert!
posted by William McGeveran
I sort of recognized myself in Emily Bazelon’s Slate article today about her family’s environmentalism. She and hubby and kids drive a Toyota Prius and recycle and otherwise try to take small steps to reduce their impact on the environment. My family, like hers, is modestly engaged in everyday environmentalism. We’ve had a Prius for three years (but we get closer to 48 mpg! Take that, Bazelon!). We recycle too, and buy a bunch of eco-products around the house (unbleached napkins, anyone?) and so forth. We belong to Co-op America, an organization promoting environmental consumerism, where my wife used to work. And certainly I agree with Bazelon’s baseline sentiment:
I want to make sure Eli and Simon never utter the kid version of the sort of overbearing environmentalism exemplified by this New Yorker quote: “I do daily yoga with my wife. We live in an energy-efficient house with solar-panel appliances. We use organic linens and towels. We try to ride bikes to work.” Don’t you want to punch this guy? I do.
Yes, I do too. Not because of all these things he does, but because he seems holier-than-thou. I convulsed in laughter at the South Park episode “Smug Alert!” about how all the “Toyota Pious” drivers are creating a dangerously toxic cloud of “smug.” (Kyle’s smug-emitting father, who briefly moves the family to San Francisco in the episode, is pictured above). Funny, because so often true.
But here’s where I part ways from Bazelon: I’m not particularly worried that my daughter will turn into some arrogant busybody environmentalist because I drive a Prius. I suppose I hope to pass on my core values to her, but those include not just environmental awareness but also humility, tolerance, a sense of humor, and most of all not being an insufferable jerk.
Indeed, fretting about this whole question strikes me as just the sort of hyper-conscious parenting that also makes me want to punch people sometimes. (Not that I ever do. I am far too peace-loving, of course.) Be a good role model on the smugness front, scold your kids if they get snooty, and hopefully it all works out. Don’t overthink it. Right?
And there’s one more antidote: we recently bought a used minivan to be our second car, and, at least for now, my daughter (age 3) likes it a lot better. Mostly because the doors slide.
July 12, 2007 at 3:03 pm
Posted in: Uncategorized
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Of Foxes, Hedgehogs, and Splitting Babies
posted by William McGeveran
Larry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre — including this blog’s own entry from Dan Filler — in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry’s explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.
It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here — surely I do it myself. But the one that drives me crazy is “splitting the baby.” It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.
In general “split the baby” gets used as a substitute for “split the difference,” “half a loaf,” or, more simply, “compromise.” (Thus explaining its frequent occurrence in legal discussions…) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.
The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers’ metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.
Any other nominees?
[Cross-posted at Info/Law]
July 10, 2007 at 10:06 pm
Posted in: Culture, History of Law, Law School, Law School (Scholarship), Religion
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Alumni Donations and Legacy Admissions
posted by William McGeveran
A new economics working paper analyzes confidential data from an unnamed elite university and reaches this perhaps unsurprising conclusion:
We find that the presence of children [in the household] increases an alumnus’s giving, that giving drops off after the admissions decision, and that the decline is far greater when the child is rejected. In short, alumni giving varies systematically with the age and admissions status of their children. This child-cycle of alumni giving is consistent with the hypothesis that some donations are made in the hope of a reciprocal benefit.
Or, as Slate summarizes the results in somewhat more vernacular terms:
At about age 14, as mom and dad see their kid’s algebra and composition grades, they decide whether he or she will apply to the alma mater. If they decide against, then they need not give extra to grease his way in. But if the kid is legacy material, then the parents might feel a need to show some generosity to Anon U.
I am pretty sure that some admissions decisions are influenced to some extent by parental donations. But the authors of the paper take pains to point out that the reality of this influence (which would be hard to pin down anyway) is not necessarily relevant, so long as the alumni parents believe it exists:
An interesting feature of this phenomenon is that the institution makes no promise of reciprocity whatsoever. True, children of Anon U alumni have a higher rate of acceptance than other students, but this does not prove that having a parent who made donations in the past increases a child’s likelihood of admission. Nevertheless, the view that reciprocity exists is widespread. [snip] We know of no statistical evidence on whether alumni donations at any university affect admissions probabilities for their children, and if so, how much. For our purposes, the key insight is that generating the child-cycle of alumni giving requires only the perception of reciprocity.
There is no apparent reason to think this data is not typical of other elite colleges. But what about law schools? How much does the perception that Mommy and Daddy’s donations help with admissions translate to law school admission? More controversial question: how close is that perception to reality? Most controversial question: how much do law school deans encourage the perception, regardless of the reality, and is that problematic?
July 9, 2007 at 11:18 am
Posted in: Articles and Books, Law School
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Sincerest Form of Flattery
posted by William McGeveran
Did anyone else think the constitutional reform initiatives announced today by brand-new British Prime Minister Gordon Brown (see news coverage here and here) sounded familiar? Among the proposed changes: Parliament will have the power to declare war, ratify treaties, and approve appointments of judges and certain key administrative personnel; the government will form a National Security Council; and a process will begin to consider (yet again) enactment of a written Bill of Rights. Brown unveiled the plans in his first House of Commons speech as PM, a real marquee moment and probably the closest thing he has to an inaugural address.
It’s nice to know that, despite all its flaws and foibles, our governmental structure still has features that others consider worth emulating. Happy Fourth of July! (And if you haven’t done so yet, you should take another moment to celebrate the day by reading the Declaration of Independence.)
July 3, 2007 at 4:20 pm
Posted in: Uncategorized
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HIPAA-cracy
posted by William McGeveran
This morning, vindication! When a long New York Times investigative piece says exactly what you have been saying for a long time, it feels very good.
So it is with this morning’s thumbsucker [reg/$$ req'd] about the ridiculous overzealousness and misunderstanding of HIPAA by health care professionals. HIPAA is the Clinton-era law that was principally concerned with making health insurance portable, but has become better known for its privacy-protection requirements. (In fact, the statute largely delegated development of all the details of the privacy provisions to the Department of Health and Human Services, which engaged in a lengthy and torturous rulemaking process.) As recounted at length in the Times piece, many employees at hospitals, doctors’ offices, and insurance companies use the statute’s supposed requirements as a shield for bureaucratic inflexibility in releasing information, even to close family members of an incapacitated patient. I have had numerous encounters with just such ill-informed stubbornness myself, and I find it maddening. (You can only imagine some of the arguments I have had with telephone receptionists who blindly invoke HIPAA.)
In addition to the direct trouble it causes for patients and their family, I fear the continued misuse of HIPAA undermines support for all privacy regulation. This is the only direct contact many people will ever have with privacy law in action. Who could blame them if they conclude that legal privacy restrictions are for the birds? Disregard for patient privacy was widespread before HIPAA, and I have no doubt legal regulation was called for. There have been 27,778 complaints under the law. But those harms are less visible to most of us than the new harm of mindless overprotection.
What’s fascinating is that the excessive caution in response to HIPAA comes against a backdrop of extremely low risk of sanctions. Exclusive enforcement power lies with HHS — the law provides no private right of action. And HHS has never imposed any civil or criminal penalty (although there are three criminal cases ongoing at the moment, those situations are extreme outliers). What explains this risk aversion given the vanishingly small risk of any real penalty?
July 3, 2007 at 12:10 pm
Posted in: Administrative Law, Health Law, Privacy, Privacy (Medical)
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Piercing the Veil of Anonymous Bloggers
posted by William McGeveran
I’m delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.
Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, “there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach.”
Personally, I don’t need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a “show me your papers” internet.
First and foremost, it should be no surprise that China reportedly is looking at a similar model — as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above — and you really should see it — you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.
July 2, 2007 at 4:42 pm
Posted in: Anonymity, Blogging, Civil Procedure, Current Events, First Amendment, International & Comparative Law, Media Law, Privacy, Privacy (Electronic Surveillance), Technology
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