Author: Daniel Solove

10

What Exactly Does “Legislating from the Bench” Mean?

judge2a.jpgIn the discussions surrounding the recent Supreme Court appointments, it seems that the big judicial no-no is to “legislate from the bench.” Orin Kerr has an interesting post about the ambiguity of this phrase as used by the White House. What exactly does “legislating from the bench” mean?

Currently, the phrase “legislating from the bench” means little more than “I know it when I see it.” Despite being thrown about rather vaguely and carelessly, the notion of not legislating from the bench appears to be based on a particular approach toward constitutional interpretation, one that I will call the “principled conservative process-based approach.” By “process-based,” I am referring to conservatives who seek to articulate an approach toward judging–a method–not just a set of results they desire for particular cases.

So what is the method? As I understand it, the method involves a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.

Far too often, the conservative process-based approach is thought and spoken about with Roe v. Wade in mind. But I wonder what applying the conservative process-based approach would have meant for some of the other famous Supreme Court cases of the past century. Consider the following cases:

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13

A Reply to Richard Epstein on Genetic Testing

dna6.jpgIn his first post to the relatively new Chicago Law Faculty Blog (which has turned out to be a really interesting blog by the way), Professor Richard Epstein argues against my recent post about genetic testing in the workplace. Epstein disagrees with my general view that it is better to restrict employers from using genetic information in making employment decisions.

epstein.jpgEpstein’s argument is based in part on his view that privacy is a form of misrepresentation, tantamount to a kind of fraud by concealing disreputable and harmful information. In this regard, he agrees with his colleague, Richard Posner, who makes a similar argument. If a person knows he will drop dead in a month from a fatal disease, it would be fraud to deliberately conceal this information on a life insurance application. So why not when seeking employment, Epstein asks, since employers often invest heavily in training a person?

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0

In the Annals for Dumb Criminals

crackhouse2.jpgTip: If you run a crack house, don’t put up a sign that says “Crack House” when you’re open for business.

According to the article:

Memphis police say brazen drug dealers are behind bars after a sting operation called “Operation Blue Crush”. All is quiet at 3293 Rosamond. That’s because the alleged gang members who took over the house are in jail. Police say the suspects were so bold they advertised the fact that this was a crack house. When they were open for business, they’d flip an address sign over that read “Crack house.”

52

A Day in the Life of Blogging

Wake up

Check email

Check blog – see if co-bloggers have posted anything and read comments to posts

Check site meter stats – see how many people visited and who’s linking to the blog

Check Technorati – see who’s linking to the blog

Check out blogs linking to the blog

Check The Truth Laid Bear – see the latest ranking of the blog

Check other blogs for ideas for blog posts

Check news sites for ideas for blog posts

computer-addict4.jpgWrite blog post

Check email

Check blog

Check site meter

Lunch

Check blog

Check email

Check site meter

Check blogs and news websites

Write blog post

Check Technorati again

Check email again

Check site meter again

Dinner

Check blog

Check other blogs

Think of ideas for tomorrow’s blog posts

Check email

Check Technorati

Check out blogs linking to the blog

Check site meter

Bedtime

Repeat the above for life . . . .

0

Exponential Growth of Blogospheric Proportions

technorati-blog-growth.jpg

The blogosphere is big . . . and it’s getting bigger. According to today’s post by David Sifry of Technorati, who periodically issues reports tracking the growth of the blogosphere:

  • As of October 2005, Technorati is now tracking 19.6 Million weblogs
  • The total number of weblogs tracked continues to double about every 5

    months

  • The blogosphere is now over 30 times as big as it was 3 years ago, with no

    signs of letup in growth

  • About 70,000 new weblogs are created every day
  • About a new weblog is created each second
  • 2% – 8% of new weblogs per day are fake or spam weblogs
  • Between 700,000 and 1.3 Million posts are made each day
  • About 33,000 posts are created per hour, or 9.2 posts per second
  • An additional 5.8% of posts (or about 50,000 posts/day) seen each day are

    from spam or fake blogs, on average

Sifry says that a big growth area for blogs is China. Also note his estimate that between 2% to 8% of new blogs are splogs, which are the fake spam blogs I just posted about.

4

Splogs

splog5.jpgWhat’s a “splog” you might ask? It’s the newest kid on the block, the ugly offspring spawned when spam and blogs mate. As one blogger describes them:

Splogging is a term coined by Mark Cuban to describe blogs with no added value, existing solely to trick people into visiting and exposing them to advertising. Splogs are often encountered in two ways: by searching for a key word on a search engine, or receiving it as a fradulent hit through your RSS aggregator. More often than not, they’re automated, linking to countless blogs and other websites, using keywords selected solely to attract more eyeballs and click-throughs for their advertising. And automation means that splogs are being created at a dizzying pace, to the point that when you do a search for almost any term, you’re bound to get a bunch of hits that are nothing but money-hungry splogs.

Yes, the person who coined the term “splog” is Mark Cuban, the owner of the Dallas Mavericks basketball team.

Splogs are used to increase the page ranking of a website in Google. It is a way to game the Google system, to get one’s website to appear higher up on the result list for particular searches. Splogs work by generating a lot of links. They are not real blogs; instead, their content is generated by randomly grabbing chunks of text from other blogs. And they are easy to create, given that Google’s Blogger service allows anybody to create a blog for free. They are often constructed automatically by computer programs. Here’s an image of part of what appears to be a splog:

splog3.jpg

Thus far, the best article I’ve been able to find about splogs is one by Online Media Daily. According to the article:

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10

Law Teaching Interview Advice

lawprofessor5.jpgThe AALS law teaching interview season will be commencing soon, and since a number of our readers will be interviewing for law teaching jobs, here are a few quick words of advice.

First, keep in mind that your interview lasts only for 30 minutes, and the law professors interviewing you will be interviewing dozens of people. They will be cooped up in a stuffy room all day, meeting one bright-eyed candidate after the next. Only a few of these scores of people will be invited back to the law school for a full all-day interview. This means that at the end of the day, your 30 minutes needs to be memorable. You need to make an impression on them. But what kind of impression?

Here’s the ideal impression, in my opinion, that you should create:

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4

When Your Cell Phone Can Recognize You

cellphone2b.jpgIn Finland, scientists are developing a cell phone that can recognize who you are by the way you walk. According to one article:

Researchers at the VTT Technical Research Centre of Finland have developed a prototype of a cell phone that uses motion sensors to record a user’s walking pattern of movement, or gait. The device then periodically checks to see that it is still in the possession of its legitimate owner, by measuring the current stride and comparing it against that stored in its memory.

If the phone suspects it has fallen into the wrong hands, it will prompt the user for a password if they attempt to make calls or access its memory.

As for accuracy:

Ailisto says, using the simple motion sensing gait method, the prototype phone correctly identified when it was being carried by someone other than its owner 98% of the time. It also only triggered accidentally, when it was with its rightful owner, 4% of the time.

6

IBM vs. NBA: Using Employee Genetic Information

ibm-nba1.jpgThis week, IBM announced that it would not use genetic information in making any employment decision:

On October 10, IBM Chairman Sam Palmisano signed a revision of the company’s equal opportunity policy specifying that IBM would not “use genetic information in its employment decisions.” In doing so, Big Blue became the first major corporation to proactively take this position. “Business activities such as hiring, promotion and compensation of employees will be conducted without regard to a person’s genetics,” wrote Palmisano in a letter to employees announcing the change.

In contrast, consider the story of Eddie Curry, an NBA basketball player. Curry was with the Chicago Bulls, but he had two incidents of heart arrhythmia. General Manager John Paxson decided to bench Curry for the rest of the season. Paxson wanted Curry to undergo a genetic test to further diagnose his heart condition, but Curry refused. According to this CNN-Sports Illustrated article:

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