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 [...]]]> 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?

This objection comes on top of earlier protests at the choice of [...]]]> 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:

Leaf through hundreds of photos of [King] and you see him standing before oceans of Americans, one arm raised to the sky, his mouth open in a call to unity. He reaches forward, rallying, cajoling, explaining. Or he is leaning in, head to head with Lyndon Johnson, and you can almost hear King, the gentle voice, the rock-hard logic. … Nowhere but in this proposed arms-crossed sculpture is King seen in the arrogant stance of a dictator, clad in a boxy suit, with an impassive, unapproachable mien, looking more like an East Bloc Politburo member than an inspirational, transformational preacher who won a war armed with nothing but truth and words.

Such controversy is par for the course. Several large memorials have been built on the National Mall in the last 15 years, including very large and prominent commemorations of the Korean War(1995), World War II (2004), and the presidency of Franklin Roosevelt (1997). WIkipedia quotes a writer in the Philadelphia Inquirer attacking the “pompous style” of the World War II Memorial as the sort “also favored by Hitler and Mussolini.” Disability activists agitated for a statue of FDR in which his wheelchair was visible (such a statue was later added on to the memorial). Most famous of all, remember the howls that greeted Maya Lin’s visionary design for the Vietnam Wall. And of course many have — quite correctly, in my view — criticized all these memorials for their giant scale and cacophony of cliche elements (Flags! Fountains! Inscribed quotes! Stone pillars representing something! Niches for reflection!). In this nifty illustrated essay for Slate, Witold Rybczynski tours the DC memorials and highlights, among other things, how didactic modern memorials have become, a feature surely shared by the plan for the King Memorial, as illustrated here.

Yet eventually all these were built; all are visited. More fundamentally, I wonder if this process of arguing over the nature of the memorial is itself part of its legacy. The debate captures, in miniature, the process of a culture communally shaping the narrative of its past. And in that vein, the thoughtful and diverse comments to the blog post quoted above are fascinating. For the most part, these are the kinds of comments I wish you saw more often on blogs. The very first commenter agrees with the aesthetic objection to the statue but doesn’t care if it’s “Made in China,” then someone a few down says “outsourcing of the memorial to China is appalling” but likes the design, and so on for screen after screen. This thing is a Rorschach blot!

And in the end, isn’t that a pretty good model for a memorial?

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 [...]]]> 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]

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 [...]]]> 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?

Election law doctrine does not leave much room for their consideration. In other contexts, identification requirements are viewed as potential privacy intrusions. The continuing controversy and the backlash in state legislatures against the federal Real ID Act (see, e.g., here and here) is one such area. Likewise, the 2004 decision in Hiibel, though it upheld state “stop-and-identify” laws allowing police officers to demand that a suspect disclose his or her name, was also analyzed primarily as a privacy issue.

But in Crawford, there is no mention of the privacy impact of turning voting into yet another important activity that you cannot accomplish without “showing your papers.” And since it is now basically impossible to board an aircraft, enter a federal building, or cash a check without showing ID, voter ID requirements become just another event in an accelerating trend toward an ID society.

I’m not necessarily saying that Crawford was wrongly decided. But it is remarkable that “ID creep” has played such a small role in both the legal argument and the news coverage related to this controversial case. Indeed, I suspect that crabwise movement toward a de facto ID requirement, through individual rules that necessitate ID in more and more settings, is worse than a straightforward debate on a national ID card. Great Britain is going through that debate now (see, e.g., here and here); if the end result is a true national ID then at least all the arguments for and against will be fully aired. Just a thought.

[Cross-posted at Info/Law.]

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. [...]]]> 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]

So, the impact for the future seems to be that the Executive can [...]]]> 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.

Some of those congressional investigations also involve alleged lawbreaking (though nobody at the White House is accused of storing tin foil wrappers full of $90,000 in bribes in their freezers as far as we know). The reasons for both privileges are quite similar, too. Here is the court’s discussion of the basis for congressional privilege:

Exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process.

Now here is the letter to Congress from White House Counsel Fred Fielding asserting executive privilege:

[F]or the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch. Presidents would not be able to fulfill their responsibilities if their advisors––on fear of being commanded to Capitol Hill to testify or having their documents produced to Congress––were reluctant to communicate openly and honestly in the course of rendering advice and reaching decisions.

The real difference, I suppose, is that Congress can’t get a search warrant or send cops into the White House. Should the two privileges be more parallel? I leave that to the experts.

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 [...]]]> 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.

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. [...]]]> 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]

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 [...]]]> 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.

I want to make sure Eli and Simon never utter [...]]]> 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.

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 [...]]]> 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]

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. [...]]]> 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?

It’s nice to know that, despite all its flaws and foibles, our governmental structure still has features that others consider worth emulating. [...]]]> 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.)

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 [...]]]> 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?

The article points to one cause: the regulations are long and often vague (though not as bad as some claim); it is always easier to say “no” than to figure out how to say “yes.” HHS must do a better job at presenting plain-English materials. Training of front-line staff — who often have the most public contact — also needs to improve. There are policy changes that could help with these problems, starting with greater effort at HHS.

In addition, I blame the army of consultants who descended on the health care industry after HIPAA passed and exaggerated its complexity to claim that only retention of their high-priced services could ensure compliance. Many offices are still spooked by that sales pitch. Increased clarity from HHS might help here too.

Finally, I agree completely with the HHS official who told the Times,

“Either innocently or purposefully, entities often use this as an excuse. They say ‘Hipaa made me do it’ when, in fact, they chose for other reasons not to make the permitted disclosures.”

I call this last phenomenon “HIPAA-cracy.” You often see the same mindset in dealing with, say, insurance coverage disputes. Inflexibility and unhelpfulness are all too often a part of the modern health care experience. And I’m not sure whether any amount of careful regulatory design can overcome that.

[Cross-posted at Info/Law]

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 [...]]]> 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.

Second, I am pretty confident a law like South Korea’s would be unconstitutional here. There is a clear right to anonymous speech under McIntyre v. Ohio Elections Commission. An influential district court case from 1997 (the web’s early days) relied on McIntyre to strike down as overbroad a Georgia law banning pseudonymous internet communications. (This is one of many cases the ACLU has brought in defense of internet anonymity.)

Finally, there are many technical methods to increase the chances of remaining anonymous online, such as using proxy servers or onion routing. (Ethan Zuckerman summarizes them in this guide aimed at dissidents and published by Reporters Without Borders). A demand for a real name and ID number makes these tactics somewhat harder to use, but certainly not impossible for a determined anonymity-seeker. The result: while most of us who follow the rules would lose the realistic capacity to stay anonymous online, the truly dedicated cyberbully, slanderer, harasser, or spammer can still remain in the shadows. Indeed, it’s not clear to me that a legal requirement to offer a (phony) name and ID number adds any real teeth against those with the knowledge and incentive to remain anonymous.

Without question, many in the US abuse online anonymity. They can cause real harm. So, are we just stuck with these abuses as the price we pay for free speech? Not entirely. There are more modest remedies available, and they are pretty much in place already. For one thing, individual sites are free to allow more or less anonymity as they see fit. Many ban anonymous comments. Many others, if they allow screen names or pseudonyms, still require registration. Lots of sites also guard against the prevalence of “Internet sociopaths and misogynistic freaks” by moderating their comments.

More fundamentally, in situations where a site does not choose to do any of the above, there is the John Doe subpoena. A complaint that states a reasonable claim against John Doe defendants for unlawful online speech usually will result in a judicial order that a web site or ISP provide available information about the speaker. Generally that information will include at least an IP address, and often the full name and postal address. Such data has been plenty for the recording industry and the government to identify defendants and proceed against them. I predict a similar outcome in the AutoAdmit case. (Indeed, Concurring Opinions’ own Frank Pasquale recently found his name in use as a pseudonym for a blogger running a gripe site critical of a health care company; in that case the court has allowed the plaintiff to “pierce the pseudonymous veil” and discover the blogger’s identity.) We may need some better procedures for discerning when such “piercing” on the basis of a complaint is appropriate, but I believe this doctrine will develop, just as it did in “corporate veil” cases. In that sense, we are evolving toward a model that allows pseudonymity, but rarely true anonymity.

That may not be so different from South Korea’s approach in most cases. As I understand the new law there, large web sites must collect the information, but need not turn it over unless the victims sue. Except for a somewhat stronger mandate for collecting information, that is pretty similar to the John Doe subpoena. And since such subpoenas appear to have proven adequate in the US to identify speakers in most cases, this may not be as important in the real world as it first appears. That said, to the extent there are differences, leaving some breathing room for anonymity is a better fit with our free speech traditions.