Author Archive for jonathan-siegel

Farewell to CoOp

posted by Jon Siegel

Today is my last day as a guest on Concurring Opinions.  Many thanks to Dan Solove and the rest of the CoOp crew.  It’s been a pleasure participating.

If you’ve enjoyed my posts here, you can continue to follow me on my regular blog, Law Prof on the Loose.

  October 21, 2009 at 6:44 pm   Posted in: Uncategorized   Print This Post   One Comment

Disturbances in the Blogosphere

posted by Jon Siegel

The FTC recently churned up the blogosphere by releasing new “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that indicate that bloggers — bloggers! — have a duty clearly and conspicuously to disclose whether they have a “connection,” such as the receipt of free product, with the makers of products that they endorse.  (See particularly section 255.5, Example 7.)  We thought that we were just posting stuff on our blogs, but suddenly it’s a federal matter.

Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point.  The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.”  This venerable proscription should apply to new media as well as to old.  The Internet is new and cool, but deception over the Internet is still deception.  Deception on a blog is still deception. 

If you’re representing yourself as a source of unbiased information about consumer products but (to take the simplest case) you’re actually getting paid by someone to say something nice about their products, there’s some deception going on.  Whether it’s deceptive not to reveal that you’re reviewing a product that you received for free because you’re known to be an influential reviewer is a closer question.  I expect magazine reviewers get free stuff all the time, but they don’t necessarily reveal it conspicuously, precisely because it’s already keyed into our assumptions.  If the proscription against deception carries over to new media, the assumptions that mitigate deception should carry over too.  So it’s ultimately a question of fact whether people assume bloggers get free stuff.  But the basic point that it should be as unlawful to use a blog to deceive as to use anything else for that purpose is sound.

Also churning up the blogosphere is the opposite trend — the consumer use of blogs and other Internet avenues to say not-so-nice things about products and services they received.  Usually big corporations have an edge in battles with consumers, but the Internet levels the playing field somewhat in this regard — the manufacturers and service providers have to be concerned about the ability of one dissatisfied consumer to communicate the problem to millions.

Let me  join both trends at once.   I recently redid my kitchen, and got all-new KitchenAid appliances.  I’m sensitive to noise, so I carefully investigated the noise levels of the refrigerator and dishwasher, and they’ve turned out great.   (FTC-Recommended Full Disclosure:  I didn’t get a dime for saying that but I would be happy to accept an appropriate fee.  KitchenAid, call my agent.)

But the oven!  Would it even occur to you to check whether an oven might make too much noise, or, indeed, any noise at all?  Well, my consumer friend, I want you to know that if you’re thinking of buying a KitchenAid range, you’d better check into it.  Every time you switch on the oven (on my model at least), a fan comes on — quite a noisy fan, too, in my (admittedly sensitive) estimation.  And it stays on the whole time you’re cooking.  The purpose of this fan, I learned from a quite unapologetic KitchenAid representative, is just to cool the range’s electronic instrument panel.  There’s progress for you — first they install a souped-up electronic panel you don’t really need (what was wrong with knobs, exactly?), and then they have to add a noisy fan so the panel won’t overheat.

The range had to go.  I knew I couldn’t live with that fan noise, so I set out on a search for a range with a quiet oven.  But it turns out to be impossible to search, because you can’t listen to ovens in stores — they’re not connected up.  And they’re not rated for noise either.  There’s no way to tell whether an oven is noisy short of buying it and installing it.  After calling every appliance store for 50 miles around, I finally found a knowledgeable salesman who recommended GE Profile, and (after spending just a few hundred bucks to get the countertop reconfigured) I got a GE Profile Double Oven, which, thank goodness, is much, much quieter.  So that’s what I recommend.

And I didn’t get a dime for saying that either.

  October 21, 2009 at 6:38 pm   Posted in: Uncategorized   Print This Post   3 Comments

Fire — Good or Bad?

posted by Jon Siegel

Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here. 

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords.  About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the  Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them.  But she did nothing. 

By 6 pm, the House of Lords was on fire.  Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings.  Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.

Obviously the fire was a terrible, devastating event.  But it did have consequences that some might regard as beneficial.  Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure,  were finally gone.

And there is something else too.  I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude.  The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea.  (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)

Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history.  But I couldn’t!  The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.

Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation.  But one thing is certain:  courts couldn’t use legislative history if the history were destroyed.  Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.

If you had the choice, would you put all legislative history to the fire?

  October 16, 2009 at 6:28 am  Tags: statutory interpretation  Posted in: Architecture, History of Law   Print This Post   4 Comments

Curricular Reform Revisited

posted by Jon Siegel

Another Concurring Opinions visitor, Spencer Waller, yesterday offered this post in response to my recent post on curricular reform.  Spencer agrees with my basic idea while challenging the usefulness of spending quite so much time on personal jurisdiction in civil procedure.

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments.  So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

Read the rest of this post »

  October 13, 2009 at 11:57 am   Posted in: Law School   Print This Post   5 Comments

At a Loss for Words

posted by Jon Siegel

Nobel laureate Herta Mueller was “at a loss for words” when she learned that she’d won this year’s literature prize.

Not to be snarky or anything, but shouldn’t the literary prize winner be particularly good at finding the right words?

  October 8, 2009 at 7:52 am   Posted in: Uncategorized   Print This Post   One Comment

Legal TV Review

posted by Jon Siegel

I don’t watch much TV, but I will admit to enjoying “House.” “Polite Dissent,” an engaging blog by someone with medical knowledge, publishes a useful medical review of each House episode, which runs down the medicine in each show and notes the medical errors committed each week. But what House really needs is a legal review. Because really, whatever medical errors they commit, House and his team also commit almost unbelievable torts and crimes on a regular basis. 

CAUTION: Many spoilers ahead.

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  October 6, 2009 at 12:38 pm   Posted in: Movies & Television   Print This Post   6 Comments

First Monday

posted by Jon Siegel

It’s the first Monday in October, the day when the Supreme Court begins its annual
Term.  You can enjoy previews from Adam Liptak of the NYT and Nina Totenberg on NPR.

Totenberg’s piece reveals the amusing distress the Justices are feeling over the appointment of a new Justice.  “You quickly get to view the court as composed of these members, and it becomes kind of hard to think of it as involving anyone else,” says Chief Justice Roberts.  “We had a long run together. And you get comfortable with that, and then it changes,” according to Clarence Thomas.

Oh, the poor bubbies!  Life must be tough when all you have is a lifetime appointment to the nation’s highest court.  I mean, a few times in your career, you have to put up with a new Justice!  Imagine that.  Maybe we should bring them tea and cookies and their favorite blanket.

The hottest case on the new docket (apart from the campaign finance case that was specially argued in September) is probably the Chicago gun case, which will test whether the recent ruling in District of Columbia v. Heller that the Second Amendment creates an individual right to bear arms applies to the states as well as the federal government. 

It will be interesting to see how this case plays out, because it tugs in the opposite direction from the usual ideological lines.  A ruling for the plaintiff would require holding that the Second Amendment, which originally applied only to the federal government, is “incorporated” into the Fourteenth Amendment and so applies against the states as well.  You would expect the conservatives, who normally believe in states rights, to be the ones most opposed to incorporation, and the liberals, who are more amenable to expansive federal power, to be for it.  But somehow I’m guessing that’s not how it will turn out.

As I observed in some previous posts on the Heller case, the same could be said of Heller itself.  Liberals are usually more amenable to ruling in favor of individual rights and conservatives more to ruling in favor of the government — but not when it comes to guns.  Instead, we see a drearily predictable ideological lineup, and not even based on general ideology, but on the ideology of the precise issue.  It will be interesting to see if even one of the Justices can vote against their ideological predilictions on this new case.

  October 5, 2009 at 8:46 am   Posted in: Uncategorized   Print This Post   One Comment

Celebrity Legal Claim of the Week

posted by Jon Siegel

Those celebrities just can’t stay away from strange legal theories.  After Roman Polanski claimed last week that his sex crime should be excused because he’s a great artist, Jon Gosselin, former star of “Jon & Kate Plus 8,” is now claiming the right to exclude television crews from the home he owns jointly with his wife.

Jon Gosselin and his wife had a “reality” TV show about their life with their eight children.  But now they are estranged, and Jon recently got fired from the show, which is to be renamed “Kate plus 8.”  Not taking this lying down, Jon has demanded that TLC, the network filming the show, stay out of his house.  If they enter to film, he claims he’ll have them arrested as trespassers.

Sheesh, if I were TLC’s general counsel, I would tell Jon, “ooh, we’re scared.”  How about some basic property law?  Every law student knows that joint owners of property (known in property law as “joint tenants” or “tenants in common”) each own an “undivided interest” in the whole property and each has a right to occupy the property without the consent of the other.  Heck, each of them has a right to lease the property without the consent of the other. 

In 1861, the California Supreme Court considered the case of a lessee who had leased property from a joint owner and was then asked to leave by the other joint owner.  The Court said, “We have no doubt that one tenant in common may occupy the common premises, and as little that he may permit another person to occupy a part of them; and it is impossible for us to see how that tenant in common could sue such person, so lawfully entering or occupying, as a trespasser, or how his cotenant could maintain such suit.”  Ord v. Chester, 18 Cal. 77 (1861).

More recently, a California court considered a case quite like the Gosselins’:  an estranged husband and wife jointly owned a home, which the husband leased to a third party.  The wife showed up and tried to oust the lessee.  The court said:  “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.  . . . When a joint tenant leases to a third party he confers upon the latter the same right of possession that he himself has.”  Verdier v. Verdier, 152 Cal.App.2d 348, 313 P.2d 123 (1957).

If one of the estranged spouses can lease the property without the consent, and indeed over the objection, of the other, then either can certainly invite guests onto the property without the consent and over the objection of the other.

So if I were TLC, I would tell Jon to get lost.  Kate’s permission is all they need.

  October 1, 2009 at 12:07 pm   Posted in: Property Law   Print This Post   One Comment

Polanski’s Ancient History

posted by Jon Siegel

Much ado about the arrest of film director Roman Polanski on a 32-year-old charge of having sex with a minor.  French Culture Minister Frederic Mitterrand says that it doesn’t make any sense to “throw him to the lions” because of “ancient history.”  Some opinion writers go so far as to term his arrest “outrageous.”  Others think it was the right thing to do.

Let’s regain our bearings here.  Mr. Polanski, according to news accounts, gave champagne and drugs to a 13-year-old girl and then had sex with her.  This is no mere technical, statutory rape — it’s not a case of some 19-year-old boy having consensual sex with his 17-year-old girlfriend.  This was a bad act indeed.  He pled guilty to a reduced charge and then fled the country when it looked like a judge was not going to go along with a plea bargain that would have had Polanski serving just 42 days in jail.  Trying to pass this off as “ancient history” seems a bit much.  If we imagine that Polanski were not a famous film director, but some everyday, middle-aged lawyer who seduced a neighbor’s 13-year-old daughter with alcohol and drugs and then had sex with her, I can’t imagine that there would be a lot of sentiment on his side.

As far as I can make out, some people think Polanski should be let off because (a) he’s famous, (b) he’s a great artist, (c) he’s been through a lot in his life, (d) it’s been a long time since he committed the crime, (e) the victim has forgiven him and would rather the whole thing just went away, and (f) there was some governmental misconduct in the initial proceedings.

I would hope we could agree that (a) and (b) are irrelevant.  We’ve endured a spate of celebrity crimes.  Celebrities don’t have a license to break the laws that the rest of us have to live with.  The law should be enforced even-handedly.  Of course, the law is generally more lenient on first-time offenders than on habitual criminals, so Polanski is entitled to the same break that any first-time offender who is generally a good person would get.  But no break for being a famous artist.

(c) could be relevant — we have taken to considering a defendant’s harsh upbringing  when passing sentences — but it doesn’t get him wholly off the hook.  At most it gets him a reduction.

(d) is not wholly irrelevant, but it’s mostly Polanski’s own fault.  The matter could have been resolved 32 years ago if he hadn’t fled the jurisdiction, and he could have come back to face the music any time. 

(e) is also not wholly irrelevant, but it’s not just the victim who needs protection; it’s also other 13-year-olds who need protection from other adults, including other adult celebrities. 

(f) is relevant but the judge who engaged in the irregular proceedings has died and another judge will now be making the decisions about Polanski’s fate (assuming he gets extradited).  So this issue is reduced.

I conclude that Polanski should face the music.  Again, if some 40-something accountant you hadn’t heard of seduced a 13-year-old girl with alcohol and drugs and then had sex with her, and then skipped the country, I don’t think we’d be arguing about whether it’s unfair to catch up with him later and throw him in jail.

  September 29, 2009 at 2:00 pm   Posted in: Uncategorized   Print This Post   9 Comments

Senator Kirk

posted by Jon Siegel

Governor Deval Patrick of Massachusetts has appointed former Ted Kennedy aide Paul Kirk to fill Kennedy’s Senate seat.  This action follows a change in Massachusetts law to permit such appointments — previously, Massachusetts Senate vacancies could be filled only by special election.

The New York Times previously opined that it was wrong for the Massachusetts legislature to make this change in law because Senate seats should always be filled by election, not by appointment.  But Massachusetts made the right move.  The problem with appointed Senators is not that we currently have so many of them (which we do, because so many elected Senators left to take cabinet posts in the Obama administration), but that so many of the appointed Senators were, in accordance with their states’ laws, appointed to fill out the entire remaining term, or at least too much of the remaining term, of their predecessors.

The Massachusetts law represents an appropriate compromise.  It avoids leaving a Senate seat unfilled for months (which is unfair to the state involved and its citizens) and it also avoids allowing an appointed Senator to serve for a long time (which gives too much power to the state’s Governor at the expense of its people).  It allows the Governor to appoint a Senator to serve on an interim basis until an election can be had in just a few month’s time. 

It’s undoubtedly true that the Massachusetts legislature had political motives in denying the previous (Republican) Governor the power it just granted to the current (Democratic) Governor.  But in politics, sometimes you do the right thing for the wrong reasons.  The Massachusetts legislature acted appropriately in allowing Governor Patrick to fill Senator Kennedy’s seat.

  September 24, 2009 at 12:02 pm   Posted in: Politics   Print This Post   4 Comments

Curricular Reform

posted by Jon Siegel

Professors on the Civil Procedure professor listserv are debating the recurring question of why we devote so much energy to topics that come up only rarely in practice, particularly personal jurisdiction and Erie.  Some are suggesting that the civil procedure curriculum should be much more practice oriented, which would mean spending a lot less time on these subjects and more time on what most lawyers actually do in practice, particularly discovery.

I think it is an error to imagine that the law school class time devoted to a particular subject needs to be proportional to the time students will spend on that subject in actual practice.  Law school is partly about acquiring particular skills and knowledge, but also, and probably more, about acuqiring the ability to acquire skills and knowledge.  We will never teach the students all they will need to know as they practice law, but we can teach them how to learn what they need to know.

The amount of time devoted to personal jurisdiction and Erie in many Civ Pro classes makes little sense in terms of the practical importance of those topics in typical litigation.  But personal jurisdiction provides a lovely illustration of the process of legal change over time that students can appreciate as the law they learn changes over the course of their careers, and Erie provides an illustration about how imoprtant theoretical issues relating to federalism impact practical doctrines.  The students need to know how to appreciate the ways in which legal change interacts with social change and the ways in which theory impacts doctrine just as much as they need to learn what Rule 26 says about discovery and disclosure.

  September 23, 2009 at 11:55 am   Posted in: Law School (Teaching)   Print This Post   29 Comments

Lieutenant Governor Ravitch Indeed

posted by Jon Siegel

A fascinating turn in the saga of New York Governor David Paterson’s attempt to appoint a Lieutenant Governor:  New York’s highest court, the Court of Appeals, has upheld it!  Reversing prior decisions, the court holds that the Governor of New York is empowered to appoint a Lieutenant Governor when that office is vacant.

For those just tuning in, NY Lieutenant Governor David Paterson became Governor when the previous Governor, Eliot Spitzer, had to resign admist a sex scandal (this factoid was discreetly left out of the judicial opinions, but we bloggers get to put it back in).  The post of Lieutenant Governor was then vacant — which was no big deal until the NY State Senate had a deadlock crisis that occurred because some Democrats switched to supporting the other side for control of the Senate.  The Lieutenant Governor is supposed to break ties in the state Senate, but there was no Lieutenant Governor!  So there was a crisis.

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  September 22, 2009 at 10:19 am   Posted in: Uncategorized   Print This Post   No Comments

Czar Wars

posted by Jon Siegel

Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House.  These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation.  Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers.  Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.

Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong.  As Rivkin and Casey point out, the President can get advice from whomever he wants.  He could get all his advice from me if that’s what he wanted to do.  He doesn’t need Congress’s permission to seek anyone’s advice.

Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.”  But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that?  The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example).  But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what? 

Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so.  Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me.  Everyone else who serves at my pleasure, do what Joe Biden tells you to do.”  Could there be anything wrong with that?  I think not.

And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs.  So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”

So I think Hutchison is wrong to suggest that there’s a constitutional problem.  Of course, whether having so many czars makes sense as a public policy matter is a different question. 

And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars.  I’m not so sure about that.  If the President wants to seek my advice, Congress can’t stop him.  But if someone wants to be on the federal payroll, then Congress is footing the bill.  If Congress  wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so.  The President has a lot of power, but the power of the purse is pretty potent, too.

  September 21, 2009 at 7:09 am   Posted in: Administrative Law, Constitutional Law   Print This Post   2 Comments

Sunday Poll

posted by Jon Siegel

Q.  Did you participate in International Talk Like a Pirate Day yesterday?

A1. Arrr, be sure that I did, me hearties!

A2. Nay, ye scurvy scoundrel!

  September 20, 2009 at 11:52 am   Posted in: Humor   Print This Post   One Comment

Health Care Crisis

posted by Jon Siegel

_______________

In December 2005, I was on a group biking tour of California wine country when I got going too fast on a steep downhill, couldn’t quite make it around a sharp left turn, went off the road, and fell over. My last thought as I went down was, “oh, this won’t be so bad, I’ve slowed down considerably.” The next thing I remember is being loaded onto a stretcher. I have no memory of anything in between, but I’m told that after my friends revived me (I was out for about a minute), I tried to get back on the bike and had to be restrained. Thank heavens, I was wearing a helmet.

An ambulance took me to the hospital. I looked like something out of a horror movie (photos here), but in the end the only real damage was that I broke one small bone in my left hand, which the doctors taped up. My ribs were pretty sore, but the doctors couldn’t quite tell whether any were broken. They thought not, but since there’s no treatment for ribs anyway, they didn’t bother to make certain. The hospital did a CAT scan, and the doctors said, oh, there might be some bleeding in your brain, we’d better keep you overnight. So I stayed overnight (in a semi-private room), and then the next morning, they did another scan and said, no, everything’s fine, that first scan must have been a false positive, go home. They did another scan in there somewhere to check for broken bones. And they gave me some pain medication and cleaned me up generally. And that was it. No surgery or anything like that.

So. Three scans, pain medication, tape for the broken bone in my hand, and not quite 24 hours in the hospital. Go ahead and take your wildest guess how much that would cost.

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  September 17, 2009 at 6:44 am   Posted in: Health Law, Uncategorized   Print This Post   5 Comments

Watch What You Say

posted by Jon Siegel

Excellent article by Olivia Judson in the NYT about how British libel law impacts science journalism.  A British science journalist is being sued by the British Chiropractic Association for writing that the association “happily promotes bogus treatments.”  A judge has ruled that the author’s use of the word “bogus” implied that the members of the BCA were not only promoting ineffective treatments, but treatments that they know are ineffective.  And that’s a statement of fact that might be libelous.

The case illustrates a clash between important principles.  On the one hand, it’s important to get the word out to the gullible public that they are being taken in by ineffective products, including — indeed, especially including — medical products.  I am frequently amazed at how people (including otherwise intelligent people) can fall for things such as those “homeopathic” products in which the allegedly effective ingredient has been diluted to the point where there is not likely to be even a single molecule of it left in the medicine the patient is supposed to take.  It’s important to educate the public about such things.  (Magician James Randi has dedicated decades to this effort.)

On the other hand, even a thief can complain if he is wrongly charged as a burglar. (Jackson v. Virginia, 443 U.S. 307 (1979).)  If people are promoting products that they honestly, but mistakenly, believe to be effective, it does seem libelous (although I’m not expert in libel law) to assert that they are deliberately engaging in fraud.

My snap judgment on this case is that the problem lies not so much in the rule as in its application.  I would say the judge erred in determining that the word “bogus” necessarily implies that the author is accusing chiropractors of deliberate fraud.  To me, the word “bogus” implies only that the treatments in question (and the article wasn’t a blanket condemnation of all chiropractic treatment, but only of claims that such treatment can cure certain, specified conditions) were in fact ineffective, whether or not the doctors performing them thought so.  Indeed, in the context of the full paragraph, it seems that the word “bogus” might have meant even less — only that the value of the treatments was unsupported by evidence.

According to the OED, “bogus” means “Counterfeit, spurious, fictitious, sham.”  I don’t see the necessary implication that people promoting bogus things know that they are bogus.  So without reaching the question of whether free speech trumps libel law in this kind of situation I think I would have determined that the critical sentence wasn’t as fraught with meaning as the judge thought.

  September 16, 2009 at 7:06 am   Posted in: First Amendment   Print This Post   One Comment

Modern English Usage

posted by Jon Siegel

On the way back from teaching class today, I passed two women students in the hallway, one of whom was saying to the other, “I was in the same situation.  But I manned up.”

Do women man up?  I was interested to learn that they do.

  September 15, 2009 at 1:20 pm   Posted in: Feminism and Gender   Print This Post   5 Comments

Your Tax Dollars At Work

posted by Jon Siegel

The New York Times reports today that people who suffer from ALS (Lou Gehrig’s disease), and who require a technological device to assist them with speaking, may be able to get their insurers to spend $8,000 for a Medicare-approved, dedicated computer that has all functions other than speech assistance disabled, but they can’t get an insurer to spend $450 on an iPhone with a speech app.  Medicare won’t approve iPhones because they can be used by people who aren’t ill.  (Strictly speaking, it’s up to private insurers to decide what to do, but many of them follow Medicare’s lead, according to the article.)

This sure sounds like a classic example of excessive “command and control” regulation where a “standards” based regulation would serve everyone better.  If an insurer will cover specific device at a certain costs, I’m hard pressed to understand why the insurer and its patients won’t be better off if the insurer approves any cheaper device that performs the same function.  Could this be some of the “waste, fraud, and abuse” that President Obama hopes to squeeze out of the health care system?

I suppose insurers are afraid of fraudulent claims by patients who really just want free iPhones.  But with a cost difference of over $7,500, insurers could spend a couple of thousand dollars investigating each claim and still come out way ahead.

Or are we just offended at the thought that insurance would buy a sick person something that everyone wants anyway?  I don’t know how many patients need this kind of device, but if we could save $7,500 apiece I’d be happy to get over my annoyance.

  September 15, 2009 at 12:06 pm   Posted in: Health Law, Uncategorized   Print This Post   3 Comments

The Smallest Change

posted by Jon Siegel

It’s the weekend, so we get to relax from more serious subjects.

When you use something every day — and when collectively we use it millions of times per day — you notice small changes.  So have people noticed that Google changed its fonts?  Type something into the search box.  The font is bigger.  I think it happened on Wednesday or Thursday of this week. 

Google’s webpage has remained remarkably similar over the years of its meteoric rise.  It turns its logo into a creative doodle on holidays and other special occasions, but basically the page still consists of a search box, two buttons, and a whole lot of white space.  New services appear discreetly in the upper left.  As other websites are constantly reinventing themselves with new looks, Google stays the same.  Even the original, cheeky “I’m feeling lucky” button, which one might have exepected to change or disappear as the site grew into a mature company, is still grinning at users every day.

That makes it all the more noticeable when the site does change.  A few months ago it started offering suggestions as you type in your search terms.  That was a little creepy at first, but I’ve gotten used to it, and it does actually save a few seconds sometimes.  (And I’m pleased to observe that if you type in “law prof ” (note the space at the end), then ”law prof on the loose” is the second suggestion.)

And now there’s a font change.  Everything is bigger and they may have dropped the serifs (although I can’t remember whether they had serifs before). 

Obviously it’s no big deal, but it’s like seeing an old friend with a  new hairstyle, or discovering that the city has cut down a tree in your favorite park.  It takes a little getting used to.  I’m reminded of August, 2007, when the New York Times got smaller.  It was still the Times, but it wasn’t quite what you expected.

Of course, now when I pick up the Times I can’t remember that it was ever bigger.  I’m sure I’ll feel the same way about Google’s font in a month or two.   But it is interesting to think that each tiny change will be seen by hundreds of millions, or perhaps billions, of users.

  September 13, 2009 at 3:53 pm   Posted in: Technology   Print This Post   4 Comments

The Future of Education

posted by Jon Siegel

Zephyr Teachout, a law professor at Fordham, predicts in Slate today that the Internet will tear apart education much the same way it has affected newspapers.  In the future, says Professor Teachout, most classes will be offered online, students will pay by the class, a few big star teachers will get all the money, and the rest of us will be glorified TAs.  “Within a generation, college will be a mostly virtual experience for the average student,” Professor Teachout says, and degrees will come from education “aggregators” rather than traditional colleges.

Professor Teachout may be one of the big stars in the new order (well, her webpage at Fordham does say that she is “an immensely talented and creative scholar”) but I’m not buying her theory just yet.  If universities just sold educations, there’d be more to it.  As Professor Teachout observes, universities incur big expenses that may prove unnecessary in the digital age.  If we ran universities on a business basis, employed technology to the fullest degree, and got rid of a few bits of archaic nonsense such as tenure and scholarly research, I’m sure we could deliver education much more cheaply.

But universities also sell their students something else:  the reputational value of the degree.  An Internet “aggregator” of education services can’t duplicate that easily.  Part of the reputational value of a degree comes from just those aspects of a university that the Internet would shed:  having faculty who are research stars, not letting just anyone take classes, etc.  Face it: if you were making hiring decisions, would your first choice be someone who graduated from a virtual school?

I think the reputational value of the degree is a big part of what universities sell, and I don’t think the Internet is going to erode that so quickly as Professor Teachout seems to believe.  And that’s before we get to other things that real colleges offer, such as enjoyment, friendships, networking, and other things that come from actually being in the same place as your classmates.

Well, it’s always dangerous to say that the Internet won’t accomplish something.  And in fairness, Professor Teachout does say that the more elite, “brand name” universities will be less affected by the developments she foresees than smaller, less known institutions.  And that makes sense:  the less reputational value your degree has, the more you really are selling education.  But I don’t think my job is going to be outsourced to the Internet just yet.

  September 11, 2009 at 2:01 pm   Posted in: Education   Print This Post   4 Comments

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