Archive for the ‘Articles and Books’ Category

Recommended Reading: Caroline Mala Corbin’s Ceremonial Deism and the Reasonable Religious Outsider

posted by Danielle Citron

Caroline Mala Corbin‘s Ceremonial Deism and The Reasonable Religious Outsider (UCLA Law Review 2010) is thought-provoking and important.  Corbin argues that the reasonable person standard at the heart of the Establishment Clause’s endorsement analysis perpetuates Christian privilege rather than ensures religious liberty and equality for all.  In her analysis, Corbin astutely invokes critiques of the reasonable person standard in sexual harassment doctrine.  Here is the abstract:

State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the “reasonable person” at the heart of the Establishment Clause’s endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that men and women often have different perspectives on what amounts to sexual harassment due to structural inequalities, and that reliance on this unstated norm perpetuates male privilege rather than remedies it.

This Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, certain invocations of God may seem acceptable to Christians that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionally of ceremonial deism should be evaluated from the perspective of a reasonable religious outsider.

  January 7, 2011 at 9:09 am   Posted in: Articles and Books, Feminism and Gender, First Amendment   Print This Post   No Comments

The Offensive Internet

posted by Danielle Citron

Harvard University Press recently published The Offensive Internet: Speech, Privacy, and Reputation, a collection of essays edited by Saul Levmore and Martha Nussbaum.  Frank Pasquale, Dan Solove, and I have chapters in the book as do Saul Levmore, Martha Nussbaum, Cass Sunstein, Anupam Chander, Karen Bradshaw and Souvik Saha, Brian Leiter, Geoffrey Stone, John Deigh, Lior Strahilevitz, and Ruben Rodrigues.  Stanley Fish just reviewed the book at New York Times.com.

  January 4, 2011 at 2:18 pm   Posted in: Anonymity, Architecture, Articles and Books, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Gossip & Shaming), Technology   Print This Post   2 Comments

2010, The Year in Scholarship

posted by Danielle Citron

Legal scholarship had so many highlights in 2010.  New articles and books seriously enriched discussions over the course of the year.  Listing them all would of course be an impossible task, but my favorites include Jack M. Balkin’s The Reconstruction Power, Ann Bartow’s A Portrait of the Internet as a Young Man, Joseph Blocher’s Government Viewpoint and Government Speech, M. Ryan Calo’s The Boundaries of Privacy Harm, Jeanne Fromer’s Patentography, James Grimmelmann’s Privacy as Product Safety, Sonia Katyal’s The Dissident Citizen and Property Outlaws: How Squatters, Pirates, and Protestors Improve the Law of Ownership (with Eduardo M. Peñalver), Deborah Hellman’s Money Talks But It Isn’t Speech, Orly Lobel’s The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties and Protections for Reporting Illegality, Michael Madison, Brett Frischmann and Katharine Strandburg’s Constructing Commons in the Cultural Environment, Jon Michaels’s Privatization’s Pretensions, Helen Norton’s The Supreme Court’s Post-Racial Turn Towards a Zero-Sum Understanding of Equality, Martha Nussbaum’s From Disgust to Humanity: Sexual Orientation and Constitutional Law, Paul Ohm’s Broken Promises of Anonymity: Responding to the The Surprising Failure of Anonymization, Frank Pasquale’s Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries, Scott Peppet’s Unraveling Privacy: The Personal Prospectus and the Threat of a Full Disclosure Future, Neil Richards’s The Puzzle of Brandeis, Privacy, and Speech (see here as well), Daniel Solove’s Fourth Amendment Pragmatism, Barbara van Schewick’s Internet Architecture and Innovation, David Super’s Against Flexibility, Eugene Volokh’s Freedom of Speech and the Intentional Infliction of Emotional Distress Tort, and Jeremy Waldron’s Dignity and Defamation: The Visibility of Hate.

  December 31, 2010 at 4:12 pm   Posted in: Articles and Books, Book Reviews, Bright Ideas   Print This Post   No Comments

Experiments in Lawyering: Does the Harvard Legal Aid Bureau Deserve a Merit Badge?

posted by Dave Hoffman

Mike Heise highlights a paper by James Greiner (Harvard) and Cassandra Wolos Pattanayak:  What Difference Representation? From the abstract:

We report the results of the first in a series of randomized control trials designed to measure the effect of an offer of, and the actual use of, legal representation. The results are startling. In the context of administrative litigation to determine eligibility for unemployment benefits, a service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory, but the offer caused a delay in the proceeding. Because a substantial percentage of the provider’s client base consisted of claimants who were initially denied benefits but who would have that initial denial reversed as a result of the litigation, the delay an offer of representation caused inflicted a harm upon such claimants in the form of an additional waiting time for benefits to begin, this with no concomitant increase in the probability of a favorable outcome. In other words, these claimants would have been better off without the offer of representation. Other classes of claimants were unaffected, but in cases with a certain profile, the delay hurt the financing of the unemployment system, again with no concomitant benefit in the probability of a favorable outcome for the claimant. We were also able to verify a delay effect due to the actual use of (as opposed to an offer of) representation; we could come to no firm conclusion on the effect of actual use of representation on win/loss. Stepping back, we use these results as a springboard for a comprehensive review of the quantitative literature on the effect of representation in civil proceedings. We find that this literature provides virtually no credible information, excepting the results of two randomized evaluations occurring in different legal contexts and separated by over three decades. We conclude by advocating for, and describing challenges associated with, a large program of randomized evaluation of the provision of representation, particularly by legal services providers.

Greiner/Pattanayak take (very) broad swipes at a variety of previous studies of representation.  Putting that aside, the results from the paper are unsettling, at least if your prior is that legal representation always helps the poor.  And I wanted to pull out one part of the article that is particularly interesting.  From pages 6-7:

[Our] ideas polarized the legal services community.  Some organizations overcame initial nervousness about defining measurable outcomes and about ceding partial control over case selection to a randomizer and embraced the effort. In doing so, these providers demonstrated the courage necessary to subject their programs to gold-standard evaluation. Among the most courageous were the students of the Harvard Legal Aid Bureau (“HLAB”), a student-run, faculty-overseen legal services office that is part of the clinical educational program at Harvard Law School. But other organizations opposed our effort. One group did not limit its opposition to a refusal to participate on its own part. Instead, when it discovered that HLAB was conducting a randomized evaluation, it halted its previous practice of suggesting that clients it could not itself represent call HLAB.

  December 21, 2010 at 5:41 pm   Posted in: Articles and Books, Civil Rights, Empirical Analysis of Law, Law School (Teaching)   Print This Post   6 Comments

Lighthouse No Good

posted by Dave Hoffman

Prompted by a tip from the civ pro listserv, I just read William Prosser’s wonderful speech, Lighthouse No Good, delivered at  Temple Law School in 1948.  In Lighthouse, Prosser talks about what it’s like to teach law, and to grow older in the profession.  There are some wonderful – unforgettable - lines.  Among them:

“On Teaching: At last the day comes when [the professor] confronts his first class. I wish I could convey to anyone who never has sat in that perilous seat the trepidation, the dismay, the feeling of helpless inferiority, which which a new professor looks into all those fresh young faces — younger, that is, by at least five years than he- which are regarding him with such manifest skepticism and disapproval.

On Grading: The examination is given, the great pile of bluebooks is brought into his office, and he attacks them with eager anticipation.   It is then that the ghastly truth is borne in upon him, the consternation and the horror, and he finds out just how good a teacher he is.  It is then he realizes the full underlying truth in that old lament of the French horn player in the little German band, ‘I blow in it so sweet, and it comes out so sour…’”

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  December 16, 2010 at 9:43 pm   Posted in: Articles and Books, Law School, Law School (Teaching)   Print This Post   3 Comments

The Year in Privacy Books 2010

posted by Daniel Solove

Here’s a list of notable privacy books published in 2010.

Previous lists:

Privacy Books 2009

Privacy Books 2008

This list contains a few books published late in 2009 that I missed on the 2009 list.

Adam D. Moore, Privacy Rights: Moral and Legal Foundations (Penn. St. U. Press 2010) My blurb: “Privacy Rights is a lucid and compelling examination of the right to privacy.  Adam Moore provides a theoretically rich and trenchant account of how to reconcile privacy with competing interests such as free speech, workplace productivity, and security.”
Cass Sunstein, On Rumors (Farrar , Strauss and Giroux 2009) A very short essay on the damage wrought by false online rumors and a discussion of how and why such rumors spiral out of control, such as the phenomena of social cascades and group polarization.  The book is worth reading, but quite short for a book (only 88 pages of primary text, in a very tiny book the size of a paperback).
Stewart Baker, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism (Hoover Institution Press 2010) A provocative argument for stronger security protections and a vigorous attack on privacy.  The arguments against privacy are often glib and dismissive, but the book is worth reading for Baker’s extensive personal experience dealing with the issues.
Christena Nippert-Eng, Islands of Privacy (U. Chicago 2010) A fascinating sociological account of people’s attitudes toward privacy and their behaviors with regards to preserving their privacy.  It contains numerous interviews, quoted copiously, of people in their own voices discussing how they conceal their secrets.  Engaging and compelling reading.
Hal Niedzviecki, The Peep Diaries: How We’re Learning to Love Watching Ourselves and Our Neighbors (City Lights Press 2009) This book is an extended essay on self-exposure online.  It is filled with many interesting anecdotes.  The book has a journalistic style and raises observations and questions more than it proposes solutions or policies.  The “notes” at the end consist only of a brief bibliography for each chapter, and there are no indications of which facts in the book came from which particular sources — a pet peeve of mine.
Bill Bryson, At Home: A Short History of Private Life (Doubleday 2010) An extensive history of the home, which as I’ve explored in some of my own writings, plays an important role in the history of privacy.  Bryson’s narrative reads well, but he only supplies a bibliography at the end — no endnotes or indications of the sources of particular facts and details.  I find this practice to be quite problematic for a work of history.
Shane Harris, The Watchers: The Rise of America’s Surveillance State (Penguin 2010) An engaging narrative that chronicles the surveillance and security measures the United States undertook after 9/11.  Filled with interesting facts, the book reads like a story.
Robin D. Barnes, Outrageous Invasions: Celebrites’ Private Lives, Media, and the Law (Oxford 2010) There are some very interesting parts of this book, but it at times seems like a grab bag of topics relating to celebrities and its central argument could use more development.  Nevertheless, it is worth reading because it discusses some interesting cases and explores comparative legal perspectives on the issues.
David Kirkpatrick, The Facebook Effect (Simon& Schuster 2010) A fascinating account of the rise of Facebook.  There are times when Kirkpatrick seems too sympathetic to Mark Zuckerberg and Facebook, but overall, this book is illuminating and engaging.
Viktor Mayer-Schonberger, Delete: The Virtue of Forgetting in the Digital Age (Princeton 2009) An interesting discussion of the “right to be forgotten.”  Some of the ground in this book appears to be already well-trodden, but Mayer-Schonberger’s keen insights on data retention and destruction make it a worthy addition to the literature.

  December 6, 2010 at 10:33 am   Posted in: Articles and Books, Book Reviews, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (National Security)   Print This Post   6 Comments

Avatar Experimentation: Human Subjects Research in Virtual Worlds

posted by Joshua Fairfield

I have just posted a (rough) draft of my latest paper, entitled Avatar Experimentation: Human Subjects Research in Virtual Worlds to SSRN.  Virtual worlds make such great research testbeds precisely because people act in a lot of ways (especially economic ways) as if the virtual world were real.  But that complicates ethical research design: you can’t engage in activities that threaten the subject’s digital property or community, for example.  This raises human subjects research issues that a lot of Institutional Review Boards may not immediately take into consideration.  Here’s the abstract — but the important part is that this is still a work-in-progress (it’s coming out in a symposium issue of the U.C. Irvine Law Review next year), and I would love comments or suggestions.

Abstract: Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds.

Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds as the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles.

Although hundreds of articles and studies examine virtual worlds, none has addressed the interplay between the law and best practices of human subjects research in those worlds. This article fills that gap.

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  December 2, 2010 at 11:18 am   Posted in: Articles and Books, Bright Ideas, Cyber Civil Rights, Cyberlaw, Privacy, Science Fiction   Print This Post   No Comments

Fourth Amendment Pragmatism

posted by Daniel Solove

I just uploaded the final published version of my essay, Fourth Amendment Pragmatism, 51 B.C. L. Rev. 1511 (2010) to SSRN.  Here’s the abstract:

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question – Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question – How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

  November 30, 2010 at 10:28 pm   Posted in: Articles and Books, Criminal Procedure, Privacy, Privacy (Law Enforcement), Privacy (National Security)   Print This Post   No Comments

Showcasing Faculty Scholarship

posted by Miriam Cherry

So, I just received some more reprints in the mail, and a couple of weeks ago, received a request from the library of the school where I am visiting to remember to turn in the reprints so that they can be nicely arranged into the faculty scholarship display case. My guess is that these display cabinets are pretty standard at law schools all over the country. Inside the cabinet there’s a little name tag, or perhaps even a nice picture, and then a nice little pile or stack of articles or books are placed next to your name.

Now, sometimes it looks like someone’s “padding” because they’ve written the introduction to the book but the whole book goes into the case (busted!). Other times, it looks like faculty members will put in something only because it has a pretty cover. The current display for my work is thoughtfully arranged so that the cover of the front law review article will match with the jacket I’m wearing in the picture (red), even though the article is extremely short.  Still, it’s nice to match. And, perhaps most important, this type of display case is low maintenance.

However, aside from matching and maintenance, are these really the most important factors we should take into account? I guess my question is whether this kind of scholarship display case does a good job in communicating the research portion of our job to our students or to other visitors, alums, or community constituencies? The answer in my opinion is, no.

A display case is a passive method of knowledge acquisition.  What if, in addition to a display case, users could use a screen to call up copies of a faculty member’s scholarship on SSRN? Or see a video in which a faculty member presents a summary of their recent article or debates their scholarship? This type of interactivity might also be useful for school websites, to give prospective students a sense of a school and the research projects that the faculty are engaged in. Since active learning leads to positive results in the classroom, i.e. more engaged students, better learning outcomes, etc., maybe we need more of an active and engaged sense in describing our scholarly work as well.  Of course, as we ease into the weekend perhaps passivity isn’t always a bad thing…

  October 29, 2010 at 2:03 pm   Posted in: Articles and Books   Print This Post   2 Comments

Baron on Leiter on Empirical Legal Studies

posted by Dave Hoffman

A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron.  Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally.  The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999).   Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.”  That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago.  So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.

“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.

But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.

The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.

But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?

As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.

But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?

In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.

I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”

Thanks, Jane!

  October 20, 2010 at 3:35 pm   Posted in: Articles and Books, Bright Ideas, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Sociology of Law   Print This Post   4 Comments

Emory Law Journal, Vol. 60, Issue 1 (October 2010)

posted by Emory Law Journal

  October 19, 2010 at 10:25 am   Posted in: Administrative Law, Articles and Books, Constitutional Law, Current Events, Law Rev (Emory)   Print This Post   No Comments

Defragmenting the Fragmentation Critique

posted by Ani Satz

I am grateful to Frank Pasquale and Glenn Cohen for the opportunity to comment on The Fragmentation of U.S. Health Care(Einer Elhauge ed., 2010). This book is the first of its kind, and I believe it will influence scholarly debate about the best way to organize, regulate, and fund health care for the next decade.

In Chapter One, Einer Elhauge provides the frame through which readers are to understand fragmentation. Fragmentation occurs as “multiple decision makers make a set of health care decisions that would be made better though unified decision making” (p. 1). The tension, as he views it, is between forms of desirable integration and undesirable disintegration (p. 2). He discusses a spectrum of fragmentation, moving from the narrowest conception—treating a patient for a particular illness (lack of coordinated care)—to treating a patient over time (breaks in access to health care at various life stages) (p. 1). He also considers patients in groups, from small patient groupings (also breaks in access to care), to patients within a broader population, such as the state or nation (p. 1). Elhauge acknowledges that the book focuses on fragmentation at the individual patient level because “probably it is less controversial that the care received by an individual patient should reflect some sort of coherent common plan” (p. 2). Elhauge argues that in order to best reform health care, policy– and law–makers will require first either “a theory about optimal integration of decision making . . . or evidence of the sort of bad results that must reflect excessive disintegration” (p. 3). The book focuses on identifying, and responding to, the latter, and it does so admirably.

My critique pertains to the narrow view of fragmentation. By framing the fragmentation discussion as a desirable integration–undesirable disintegration dichotomy, the problems of fragmentation cannot be seen to their fullest extent. The integration–disintegration dichotomy assumes that existing legal structures are appropriate and seeks to work within them. As a result, assumptions and beliefs upon which these structures are built are taken as sound. The most troubling assumption is that illness is viewed as exceptional, rather than as part of the human condition. We are all universally vulnerable to illness and the subsequent disadvantage it creates. Further, few people fall into a concrete “sick” or “well” category—most of us fall somewhere along a continuum of wellness.

Framing the fragmentation debate in terms of existing legal structures has two significant consequences. First, it deeply entrenches a fallacy within current laws (and many of the reforms addressed in the book) that individuals are fully-functioning over a life-time, capable of laboring for wages (which may provide health care), and able to form and order certain preferences that allow them to participate actively and efficiently in the market. Dominant legal, political, and economic theories embrace a concept of the “liberal subject” that assumes that individuals are able to enter society and participate on equal ground. This view does not appreciate and respond to our universal vulnerability to illness, particularly to catastrophic illness.

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  October 13, 2010 at 4:11 pm   Posted in: Articles and Books, Book Reviews, Health Law, Legal Theory, Symposium (Health Care Fragmentation), Uncategorized   Print This Post   One Comment

Thumbs Up for Perino’s “Hellhound of Wall Street”

posted by Lawrence Cunningham

The country continues to suffer from bank excesses like high-risk compensation, shoddy customer treatment, and falsely-secured loans.  Those excesses occurred amid a giddy market plagued by inept regulation organized by leaders walking through the revolving doors linking high finance and government.  Damage includes bank failures, lost savings, and an ongoing, severe economic recession.  Fallout has included controversial government bailouts; finger-pointing running back in time to the previous laissez-faire President and forward to his progressive successor; and official hearings to get to the bottom of the abject mess. 

I’m writing, of course, about the period from late 1929 to 1933, retold with spellbinding elegance by Michael Perino in his gripping account of the events that culminated in the stunning hearings about the causes of the 1929 stock market crash and the financial failures of that period.  Perino’s engaging account focuses on the piotval hearings spearheaded by the unlikely hero, Ferdinand Pecora, lawyer of humble roots and modest standing, whose questioning of legendary Wall Street titans of the day uncovered dirty secrets of the devious financiers whose deception, duplicity and greed stoked the devastation. 

The book, The Hellhound of Wall Street: How Ferdinand Pecora’s Investigation of the Great Crash Forever Changed American Finance, is an impressive substantive and literary achievement.  In its first half (127 pages) Perino narrates a riveting tale, providing a stimulating back-story, rich characterization, and delicious plot-building; in its second half (150 pages), Perino weaves an amazingly suspenseful account of the ten days of hearings that Pecora conducted probing the exploits of the country’s most powerful bank of the period.

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  October 10, 2010 at 3:25 pm   Posted in: Articles and Books, Book Reviews   Print This Post   4 Comments

Rakesh Khurana’s “From Higher Aims to Hired Hands”

posted by Frank Pasquale

Rakesh Khurana’s book From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession is a profound contribution to sociology and institutional analysis. It is also a persuasive critique of some of the most disturbing trends in the American economy. While B-schools may seem of marginal relevance to the actual conduct of CEOs, Khurana observes in the book that they “occupy the commanding heights of higher education . . . and the kinds of knowledge and skill they purvey [are] now seemingly more essential to the tasks of university—and indeed societal—leadership than anything taught elsewhere on campus” (367). Khurana describes how leading B-Schools gained a world of power, prestige, and influence in the 20th Century, but lost their soul along the way.

The Biblical echo here is intentional: like Weber, Khurana traces the religious origins of the concepts of vocation and higher education. His focus on values—as well as his harsh indictments of business education past and present—could easily lead Khurana to jeremiads or charismatic prophecy, but he skillfully resists both of these temptations. He offers a sober vision for hope in the future of business education. Khurana’s work should inspire legal academics as well as business school professors (as it already has in a conference at the University of St. Thomas Law School (pdf) last year).

Khurana’s book has several points of interest for legal scholars. He focuses on the role of community and norms as sources of values distinct from markets and governmental hierarchies. As post-crisis interventions in the health care, finance, energy, and transport have demonstrated, the old debates over “market vs. government” solutions, or “private vs. public” spending, are of fading relevance for serious social theory in the US (however potent they may be on the campaign trail). Flaws in the “government” are all too often rooted in flaws in the “market,” which are in turn rooted in past flaws in policy, ad infinitum. Recent liberalization of campaign finance rules will only accelerate that dynamic of capture. Institutions that generate values are some of the few entities capable of short-circuiting this pernicious circularity.
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  October 5, 2010 at 5:07 pm   Posted in: Articles and Books, Corporate Law, Corruption, Economic Analysis of Law, Philosophy of Social Science, Sociology of Law, Uncategorized   Print This Post   2 Comments

Future of the Internet Symposium: Do we need a new generativity principle?

posted by Barbara van Schewick

[This is the second of two posts on Jonathan Zittrain’s book The Future of the Internet and how to stop it. The first post (on the relative importance of generative end hosts and generative network infrastructure for the Internet's overall ability to foster innovation) is here.]

In the book’s section on “The Generativity Principle and the Limits of End-to-End Neutrality,” Zittrain calls for a new “generativity principle” to address the Internet’s security problem and prevent the widespread lockdown of PCs in the aftermath of a catastrophic security attack: “Strict loyalty to end-to-end neutrality should give way to a new generativity principle, a rule that asks that any modifications to the Internet’s design or to the behavior of ISPs be made where they will do the least harm to generative possibilities.” (p. 165)

Zittrain argues that by assigning responsibility for security to the end hosts, “end-to-end theory” creates challenges for users who have little knowledge of how to best secure their computers. The existence of a large number of unsecured end hosts, in turn, may facilitate a catastrophic security attack that will have widespread and severe consequences for affected individual end users and businesses. In the aftermath of such an attack, Zittrain predicts, users may be willing to completely lock down their computers so that they can run only applications approved by a trusted third party.[1]

Given that general-purpose end hosts controlled by users rather than by third-party gatekeepers are an important component of the mechanism that fosters application innovation in the Internet, Zittrain argues, a strict application of “end-to-end theory” may threaten the Internet’s ability to support new applications more than implementing some security functions in the network – hence the new principle.

This argument relies heavily on the assumption that “end-to-end theory” categorically prohibits the implementation of security-related functions in the core of the network. It is not entirely clear to me what Zittrain means by “end-to-end theory.” As I explain in chapter 9 of my book, Internet Architecture and Innovation (pp. 366-368), the broad version of the end-to-end arguments [2] (i.e., the design principle that was used to create the Internet’s original architecture) does not establish such a rule. The broad version of the end-to-end arguments provides guidelines for the allocation of individual functions between the lower layers (the core of the network) and the higher layers at the end hosts, not for security-related functions as a group.

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  September 8, 2010 at 4:57 pm   Posted in: Architecture, Articles and Books, Cyberlaw, Symposium (Future of Internet), Technology, Uncategorized   Print This Post   One Comment

Future of the Internet Symposium: Will Robotics Be Generative?

posted by Ryan Calo

I don’t know that generativity is a theory, strictly speaking. It’s more of a quality. (Specifically, five qualities.) The attendant theory, as I read it, is that technology exhibits these particular, highly desirable qualities as a function of specific incentives. These incentives are themselves susceptible to various forces—including, it turns out, consumer demand and citizen fear.

The law is in a position to influence this dynamic. Thus, for instance, Comcast might have a business incentive to slow down peer-to-peer traffic and only refrain due to FCC policy. Or, as Barbara van Schewick demonstrates inter alia in Internet Architecture and Innovation, a potential investor may lack the incentive to fund a start up if there is a risk that the product will be blocked.

Similarly, online platforms like Facebook or Yahoo! might not facilitate communication to the same degree in the absence of Section 230 immunity for fear that they will be held responsible for the thousand flowers they let bloom. I agree with Eric Goldman’s recent essay in this regard: it is no coincidence that the big Internet players generally hail from these United States.

As van Schewick notes in her post, Zittrain is concerned primarily with yet another incentive, one perhaps less amenable to legal intervention. After all, the incentive to tether and lock down is shaped by a set of activities that are already illegal.

One issue that does not come up in The Future of the Internet (correct me if I’m wrong, Professor Zittrain) or in Internet Architecture and Innovation (correct me if I’m wrong, Professor van Schewick) is that of legal liability for that volatile thing you actually run on these generative platforms: software. That’s likely because this problem looks like it’s “solved.” A number of legal trends—aggressive interpretation of warranties, steady invocation of the economic loss doctrine, treatment of data loss as “intangible”—mean you cannot recover from Microsoft (or Dell or Intel) because Word ate your term paper. Talk about a blow to generativity if you could.

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  September 8, 2010 at 2:57 pm   Posted in: Architecture, Articles and Books, Consumer Protection Law, Cyberlaw, Symposium (Future of Internet), Technology, Tort Law   Print This Post   No Comments

Future of the Internet Symposium: Generative End Hosts vs. Generative Networks?

posted by Barbara van Schewick

Which factors have allowed the Internet to foster application innovation in the past, and how can we maintain the Internet’s ability to serve as an engine of innovation in the future? These questions are central to current engineering and policy debates over the future of the Internet. They are the subject of Jonathan Zittrain’s The Future of the Internet and how to stop it and of my book Internet Architecture and Innovation which was published by MIT Press last month.

As I show in Internet Architecture and Innovation, the Internet’s original architecture had two components that jointly created an economic environment that fostered application innovation:

1. A network that was able to support a wide variety of current and future applications (in particular, a network that did not need to be changed to allow a new application to run) and that did not allow network providers to discriminate among applications or classes of applications. As I show in the book, using the broad version of the end-to-end arguments (i.e., the design principle that was used to create the Internet’s original architecture) [1] to design the architecture of a network creates a network with these characteristics.

2. A sufficient number of general-purpose end hosts [2] that allowed their users to install and run any application they like.

Both are essential components of the architecture that has allowed the Internet to be what Zittrain calls “generative” – “to produce unanticipated change through unfiltered contributions from broad and varied audiences.”

In The Future of the Internet and how to stop it, Zittrain puts the spotlight on the second component: general-purpose end hosts that allow users to install and run any application they like and their importance for the generativity of the overall system.

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  September 8, 2010 at 1:18 pm   Posted in: Architecture, Articles and Books, Cyberlaw, Symposium (Future of Internet), Technology, Uncategorized   Print This Post   No Comments

Future of the Internet Symposium: (Im)Perfect Enforcement

posted by Ryan Calo

Prohibition wasn’t working. President Hoover assembled the Wickersham Commission to investigate why. The Commission concluded that despite an historic enforcement effort—including the police abuses that made the Wickersham Commission famous—the government could not stop everyone from drinking. Many people, especially in certain city neighborhoods, simply would not comply. The Commission did not recommend repeal at this time, but by 1931 it was just around the corner.

Five years later an American doctor working in a chemical plant made a startling discovery. Several workers began complaining that alcohol was making them sick, causing most to stop drinking it entirely—“involuntary abstainers,” as the doctor, E.E. Williams, later put it. It turns out they were in contact with a chemical called disulfiram used in the production of rubber. Disulfiram is well-tolerated and water-soluble. Today, it is marketed as the popular anti-alcoholism drug Antabuse.

Were disulfiram discovered just a few years earlier, would federal law enforcement have dumped it into key parts of the Chicago or Los Angeles water supply to stamp out drinking for good? Probably not. It simply would not have occurred to them. No one was regulating by architecture then. To dramatize this point: when New York City decided twenty years later to end a string of garbage can thefts by bolting the cans to the sidewalk, the decision made the front page of the New York Times. The headline read: “City Bolts Trash Baskets To Walks To End Long Wave Of Thefts.”

In an important but less discussed chapter in The Future of the Internet, Jonathan Zittrain explores our growing taste and capacity for “perfect enforcement.” Read the rest of this post »

  September 7, 2010 at 2:58 pm   Posted in: Architecture, Articles and Books, Book Reviews, Cyber Civil Rights, Cyberlaw, DRM, Jurisprudence, Legal Theory, Symposium (Future of Internet), Technology   Print This Post   5 Comments

The Un-Ouch: Enthusiastic Review of Alexander Tsesis’s We Shall Overcome: A History of Civil Rights and the Law

posted by Danielle Citron

Today, my co-blogger Gerard flagged an “Ouch” review of Laura Kalman’s new book.  This brought to mind a deservedly glowing review of Alexander Tsesis’s We Shall Overcome: A History of Civil Rights and the Law.  Tsesis’s book traces the history of legal efforts to achieve civil rights for all Americans, beginning with the years leading up to the Revolution to our own times.  In the Law and History Review (August 2010), George Rutherglen writes:

Alexander Tsesis surveys the entire history of civil rights, from its origins in the reaction to slavery to its latest manifestations in federal legislation and constitutional decisions.  All of this is covered in considerable detail, with many references to original sources, and  a wealth of quotations from the participants themselves. No less because of its clear-eyed view of the pervasiveness of discrimination in American life, We Shall Overcome is all the more remarkable for the resolute optimism that it brings to the prospect of achieving equality through law.  It is a rich and valuable introduction to the history of civil rights, one which expresses a welcome enthusiasm for its subject and a wholehearted endorsement of the aims and vision of the civil rights movement.

  September 5, 2010 at 8:34 pm   Posted in: Articles and Books, Civil Rights, Constitutional Law   Print This Post   No Comments

What Will Be the Defining Idea of the Coming Decade?

posted by Daniel Solove

For the 10th-anniversary issue of The Chronicle of Higher Education‘s The Chronicle Review, the editors asked several scholars for answers to the question: “What will be the defining idea of the coming decade, and why?”

Here’s the list of the people they asked: Jaron Lanier, Daniel J. Solove, Peter Singer, Elaine Howard Ecklund, Gwenda Kaczor, Jonathan Haidt, Parker J. Palmer, Camille Paglia, Yi-Fu Tuan, Michael Glenwood Gibbs, Daniel J. Cohen, James Elkins, Mary Beard, Linda K. Kerber, Geoffrey Moss, Henry Petroski, Alondra Nelson, Brian Knutson, Saleem H. Ali, Steve Brodner, Stephon H.S. Alexander, Steven Landsburg, and Pat Shipman.

You can find all the answers here.

My answer is a short essay called Dizzied by Data. It begins:

In his short story “The Library of Babel,” Jorge Luis Borges imagined an infinitely large library containing all books. Although the library was wondrous, people had no way of finding the right book. Much like Borges’s library, the information age has presented us with a dizzying amount of data. The past decade witnessed the rise of the interactive Internet—Web 2.0—where people not only consume information but also add to it. Millions of people started blogging; social-networking sites like Facebook amassed half a billion users; and sites like Wikipedia enticed people to collaborate and share their expertise.

To cope with all this data, we created new ways to find it and analyze it. Search engines like Google revolutionized our ability to locate information, and data-mining technologies were developed to detect patterns and make judgments about people’s interests and behavior.

Over the next decade, the ability to search for information and to analyze it will mature dramatically. . . .

For the rest, click here.

  August 31, 2010 at 12:59 pm   Posted in: Articles and Books, Privacy, Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement), Social Network Websites   Print This Post   3 Comments

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