Concurring Opinions » Bright Ideas

BRIGHT IDEAS: John Temple on The Last Lawyer

Deven Desai — Mon, 16 Nov 2009 21:04:57 +0000

John Temple is Associate Dean of the P.I. Reed School of Journalism. His new book, The Last Lawyer, follows Ken Rose as he handles a post-conviction death penalty case. Whether one is for or against the death penalty, the book reveals how any system with capital punishment must face the problems of inadequate defense, mental retardation, mental illness, and sketchy witness testimony. John is not, however, a lawyer. His post today explains what drew him to this story and the difficult choices the story made him face as writer. For those interested in chronicling major social issues and for those who want to know the details of what it takes to do capital defense work, this book should be a great place to start.

THE LAST LAWYER

By John Temple, author of The Last Lawyer

Unlike many authors who set out to write about hot-button issues, I was not motivated by ideology, but rather by a journalistic impulse — what Tom Wolfe calls the desire to chronicle “the way we live now.”

About 10 years ago, I saw a news brief about a team of lawyers who were flying in to Texas to defend a man who faced a looming execution date. It had never occurred to me that there were lawyers who specialized in last-minute capital appeals. That was a book, I thought. It would have the scope, the ticking-clock narrative, the characters with goals.

In 2004, I began looking for the right setting. I settled on North Carolina. It had a large death row, an organization exclusively devoted to fighting death sentences (the Center for Death Penalty Litigation), and it was within driving distance of my home in West Virginia. I contacted Ken Rose, the executive director of the CDPL, and explained my plan. He helped me arrange a visit to Durham to meet some attorneys who might have a case I could follow. He was clear that he thought the attorney should be someone other than himself.

In May of that year, I drove to Durham and spent the first couple of days interviewing CDPL attorneys, including Ken. None of the other lawyers were litigating cases that seemed quite right for my idea. Meanwhile, I was growing more interested in Ken, a self-effacing, driven man who’d been doing the work for more than a quarter-century. But Ken brushed aside my queries about his own cases.

At Ken’s request, I had carried along a manuscript of my then-unpublished first book, Deadhouse: Life in a Coroner’s Office. I was nervous to give it to him because it was a book about courts and homicide cases, Ken’s area of expertise. I worried he’d find something offensive – or worse, incorrect – and cut off my access.

But he read the manuscript in one night, and the next day, he gave it back to me without much comment. Whatever he’d thought, he had apparently come to a conclusion. He sat back on his couch and said the words I’d been hoping to hear: “You know, I have a case you might be interested in.”

“Tell me about it,” I said.

That was the beginning of my four-and-a-half year journey into the world of capital post-conviction law. But just because Ken was willing to share the story of one of his cases for me didn’t mean that I had gained full access to the case. For the next several months, Ken and his co-counsel and I negotiated an agreement that would give me the detail I needed to write a full and honest account of the case.

We eventually struck a deal. They agreed to give me full access to their case files and allow me to shadow them during strategy sessions and witness interviews.
In exchange, I made several concessions. I agreed not to publish the book until the case had reached some sort of conclusion, whether that meant a reduced sentence, exoneration, or execution. This was difficult because capital post-conviction cases can drag on for decades, and I had not yet earned tenure. It was a gamble, but one I was willing to take, because I simply didn’t want to write a book about an unfinished case.

I also agreed to let the CDPL lawyers read the book before I published it, though I would retain full editorial control. As a former newspaper reporter, I’d been trained to never allow sources to read your work before publication. However, I didn’t think the rationale behind this journalistic tradition applied to a book of this scope. Why not give sources the chance to correct factual errors, I thought, especially when I had retained editorial control on a story that was years in the making? It wasn’t a difficult concession.

After all the years of work, the book is now finished, and we all adhered to our agreement. When I sent Ken Rose the completed manuscript last year, I was very concerned about his reaction. Some parts of the book paint him in an unflattering light, and he’s not a guy who loves the limelight in the first place.

Though he was initially concerned about a few aspects, and clearly uncomfortable in the role of the book’s protagonist, Ken has handled the book’s publication in the most gracious manner. He recently participated in a panel discussion with me at West Virginia University, and has invited me to North Carolina to speak together.

It’s impossible to sum up what I learned over this five-year journey, but from a writer’s standpoint, I’ll offer what I deem to be the biggest lessons. First and above all else, choose a subject that fuels your passion, because when things break down or seem like they might not work out (as was the case for an almost 18-month span during my reporting), you’ll need that inner strength to continue. Second, don’t be afraid to jump outside of your comfort zone. It felt awkward and “unjournalistic” to allow the characters in my book to read the manuscript before publication, but the product was much more accurate as a result. Finally, a little luck can never hurt — and a happy ending is the icing on the cake.

BRIGHT IDEAS: Laura DeNardis on Protocol Politics

Danielle Citron — Thu, 12 Nov 2009 22:37:13 +0000

Laura DeNardis has written a superb new book, Protocol Politics (MIT Press, 2009). Laura, the Executive Director of the Yale Information Society Project, is a scholar of Internet governance issues who teaches Access to Knowledge at Yale Law School. Protocol Politics tackles the political, economic, and technological ramifications of our vanishing supply of Internet protocol addresses and the selection and adoption of a new Internet protocol. The book helps us see why this issue has a profound impact on Internet civil liberties, US military objectives, globalization, institutional power struggles, and democratic freedoms. It offers recommendations for Internet standards governance, based not only on technical concerns, but also on principles of openness and transparency, and examines the global implications of looming Internet address scarcity versus the slow deployment of the new protocol designed to solve this problem. I asked Laura about her book; her answers are below:

WHY DID YOU WRITE THIS BOOK?

DeNardis: Internet technical protocols, the ‘agreed upon’ blueprints that enable interoperability among technologies, are largely invisible to Internet users but structure how we access information, influence which corporations will gain market dominance, and make direct decisions about our Internet freedoms. I wrote this book for four reasons. First, I wanted to bring this largely hidden world of Internet standards setting and protocol design to a wider audience and explain why citizens should be engaged in protocol debates. Second, I used the new Internet Protocol – IPv6 – as the primary case study because it is at the center of a very real global dilemma. The reserve of Internet addresses necessary for every connection to the Internet is nearly depleted and the migration to the new protocol designed to solve this problem has barely begun. The progression of Internet address depletion, as well as more than a decade of unrealized promises about the new protocol, is one of the most fascinating stories in the history of the Internet. Third, I wanted to present a framework for Internet governance that moves beyond the usual ICANN issues to include a different set of questions about standardization, communication rights, critical Internet resources, and intellectual property. Finally, I wanted to present a framework for openness and transparency in technical standardization that has the technical rationale of maximizing interoperability, the economic rationale of encouraging competition, and the political goal of maximizing the legitimacy of private standards-setting organizations to make decisions that establish public policy in areas such as individual civil liberties, democratic participation, and user choice.HOW DOES THIS BOOK FIT IN YOUR LARGER PROJECT ABOUT TECHNOLOGY AND DEMOCRACY?

DeNardis: My overall research project, influenced by the field of science and technology studies (STS), examines how the Internet’s underlying technical architecture directly embodies social values and political interests and and how technical design choices in turn shape law and society. Technical design decisions can either promote values of democracy, innovation, and individual rights or they can resist these values. My current book project – Technologies of Dissent – builds upon this work to examine the intersection of Internet technical architecture and political protest. I’m currently writing about issues related to dissent and Internet technologies, such as the Google maps mashup controversy over California’s Proposition 8, the role of social media in the Iranian election protests, and the use of twitter during the recent G20 protests.

BRIGHT IDEAS: Bonnie Honig on Emergency Politics: Paradox, Law, Democracy

Deven Desai — Wed, 07 Oct 2009 21:08:02 +0000

Today’s Bright Idea comes from Professor Bonnie Honig. Professor Honig, also Senior Research Fellow at the American Bar Foundation and appointed (courtesy) at Northwestern Law School, is Sarah Rebecca Roland Professor of Political Science. Professor Honig’s work has appeared in the American Political Science Review, Political Theory, Strategies, Boston Review, Social Text, Social Research, and Triquarterly Review. She has written several books including, Political Theory and the Displacement of Politics (Cornell, 1993; awarded 1994 Foundations Best First Book Prize), Democracy and the Foreigner (Princeton, 2001), and Emergency Politics: Paradox, Law, Democracy (Princeton, 2009) which is the topic of today’s post. In short, Professor Honig challenges us to think about the interplay between democracy and emergency politics. Princeton has made the introduction available here as a pdf. In short, Professor’s investigation grew to encompass questions regarding “immigration politics, new rights claims, contemporary food politics and the infrastructure of consumption, and the limits of law during the Red Scare of the early twentieth century.” She drew on Moses Mendelssohn, Franz Rosenzweig, and other Jewish thinkers to provide a way for us to think about these problems. Here is Professor Honig sharing some of her ideas about emergency politics and how the book evolved.

BONNIE HONIG
on
Emergency Politics: Paradox, Law, Democracy

Emergencies isolate people and make them afraid. Democracy, more than law, postulates courage and collectivity. More to the point, it is not as if we can separate law and democracy, as critics of majoritarianism like to do. What is done in the name of law or its suspension also depends upon the (de)mobilization of democratic energies.

My aim in writing Emergency Politics was to give a more democratic rather than liberal perspective on emergency, to acknowledge the importance of law to the emergency situation (as a resource in combating political violence, as a protector of rights in times of political difficulty) but also to point out that the turn to law, while necessary, is not adequate to respond to the demands of emergency politics.

One of the framing ideas of the emergency politics literature comes from Carl Schmitt, the German legal theorist who became a Nazi jurist. Schmitt talked about emergency situations as a state of exception. This is not a lawless situation, he argued, but rather a paradoxical situation of lawful lawlessness, one in which ordinary law is lawfully suspended. Yet, as Clinton Rossiter points out in his book, Constitutional Dictatorship, most major democracies have such emergency provisions.

Emergencies are temporary by their nature, Schmitt argued, and the suspension of ordinary law will eventually end, also lawfully, and normal law restored. But the decisionistic structure of sovereignty is always there, in the shadows. One of the things centrally important to Schmitt is how in the extraordinary moment of emergency the real architecture of sovereignty becomes visible and the decision (sovereign discretion), always a factor in political life, is laid bare.

As I investigated Schmitt’s ideas, I noticed that Schmitt analogized his idea of the legal suspension of law to theology’s miracle. Miracle, he said, is the suspension of nature’s normal order by the god who created it. In miracle, god’s decisionistic power is revealed for all to see. Miracle interrupts the ordinary causal world but does not destroy it. The normal pattern of nature returns in miracle’s aftermath. While this is indeed a familiar view of miracle, it is not the only one. Other contending views of miracle have put pressure on this one. One contender comes from within the Judaic tradition. It was developed by Franz Rosenzweig, who, it turns out, was writing at the same time as Schmitt.

What if we took seriously Schmitt’s analogy of emergency to miracle but read miracle in terms set by the contending tradition taken up by Rosenzweig? This alternative view of miracle is that miracle does not compel or command attention but is rather a subtle signal that solicits a response. Those who want to receive the signal, to witness it, have to be open to the possibility of miracle. This openness requires preparation, habituation to certain patterns of receptivity, the cultivation of a certain orientation to divinity, and periodic collective gathering. Orientation is not a solo affair. Without all this, like the proverbial tree falling in an empty wood, miracle may pass us by, unnoticed. We might say the same for democracy, which depends upon cultivation, participation, and periodic gathering. When democratic forms of life are interrupted by emergency, well-prepared subjects may experience a solicitation to respond democratically, to gather, to mobilize to protect and expand the values of their collective life. Without such orientation, however, and without its infrastructures of collective gathering, emergency has the opposite effect: it isolates people and embellishes the top-down forms of sovereignty that are characteristic of modern democracies in their state forms.

Suddenly the book was about Jewish political thought, or perhaps it became an exercise in it. Soon, almost unbeknownst to me, other chapters were featuring discussions of Judaic thought and culture. Chapter Two now featured a discussion of the Kantian demand that we have faith in progress and of Moses Mendelssohn’s brave refusal to adopt that view, though he was publicly pressured to do so. He was also called to renounce the Judaism that the Christian Enlightenment saw as a relic of a past left behind by Christ and reason. In Chapter Three I explored the ins and outs of discretionary and interpretative power license partly by looking at the creative routes taken by the rabbis to abolish the Biblical death penalty. In Chapter Four, I looked at how sovereign powers can deliberately mis-construe popular demands (and vice versa!) by developing a new reading of the chapter in the Book of Numbers where Miriam dies and Moses, who does not seem to know how to mourn her, is deaf to the calls of the people who love her as their prophet and thirst for her after her death. Suddenly, I couldn’t help but notice that Louis Post, a hero of Chapter Three, looked a lot like a rabbi (though he was not Jewish, of course).

It is tempting to think that whole history of the development of the US as a national security state was foreshadowed by the struggles between these two pairs of men, tracked in two of this book’s chapters: Schmitt and Rosenzweig, Post and Hoover. That history was affected, too, by some contingent facts: Post, Assistant Secretary of Labor under Wilson, who used his discretionary power to interpret the alien and sedition acts in ways that allowed him to free many of those rounded up in the Palmer raids, was 72 at the time of his encounter with the newly developing national security apparatus of J. Edgar Hoover, a zealous and energetic young man in his first job. And Rosenzweig was taken early, at the age of 41, by ALS, while Schmitt lived a long life, to the age of 96. How might US history have been different had the ages of my protagonists been reversed? What if in 1919-1920, Louis Post, had been just beginning his career as a young man? And what if J. Edgar Hoover, Post’s antagonist, had himself been 72 at the time, and fated to die just a few years later? What if we lived democratic life in the subtle shade of Rosenzweig’s idea of miracle, rather than that of Schmitt? What if it was Schmitt who had died tragically early at 41, struck down in his prime, and Rosenzweig who had lived to the ripe old age of 96?

How might just posing these questions, and exploring the alternative worlds they might disclose, affect what we see today, and what we find it possible to do tomorrow? The power of questioning should not be underestimated. Miriam knew its power. So did her brother, Moses, the lawgiver. It was shortly after she asked her younger brother – “Does the lord speak only through Moses?” — that she was struck with leprosy and had to be confined, away from the people who might have followed her. For the moment, and by way of a public health emergency, declared by Moses and accepted without question by the Israelites, the struggle between the people and the law(giver), the paradoxical struggle that in our own time is constitutive of democratic life, was settled.

BRIGHT IDEAS: Victor Hansen and Lawrence Friedman on The Case for Congress: Separation of Powers and the War on Terror

Deven Desai — Wed, 12 Aug 2009 18:29:22 +0000

Today’s Brights Ideas piece comes from Professors Victor Hansen and Lawrence Friedman who both teach atNew England Law, Boston. The book, The Case for Congress: Separation of Powers and the War on Terror (Ashgate), shows how Congress still has vital role to play in the way our country conducts war. In addition, for all of you wondering about the gestation of a book, let alone one where two authors must work together, the authors share the story of the beginnings of the book and some insights about collaboration and the legal academy.

VICTOR HANSEN and LAWRENCE FRIEDMAN

The Case for Congress: Separation of Powers and the War on Terror

THE BOOK

Despite the focus on Presidential power and its expansion since September 11, one branch of government has not received enough attention: Congress. Though the office of the President has over time accrued more power in the area of national security than the textual delegation in Article II would suggest, Congress still has an important role to play. At this writing, President Obama continues to pursue some of the same strategies adopted by his predecessor, and so it seems our representatives in Congress can never be reminded enough that they have the constitutional authority both to authorize and supervise many aspects of the defense of the nation against the threat posed by terrorism. This perspective drives our new book, The Case for Congress: Separation of Powers and the War on Terror.

Now, several years and a new Presidential administration after we began discussing the role of Congress in national security matters, we remain convinced that Congressional involvement should be encouraged.

The benefits of such Congressional action are many. Not least is the value that inheres in Congress, through enabling legislation and the apparatus of the political process, serving as a check on a President’s tyrannical impulses. In the end, as the framers imagined, Congressional involvement brings to the table a measure of accountability that exclusively executive decision making often lacks.

THE PROCESS: FROM DISCUSSIONS TO ARTICLES TO COLLABORATION

We started writing The Case for Congress: Separation of Powers and the War on Terror without even realizing it. As we note in the book’s preface, the project began as a discussion over lunch in late 2005 about various aspects of the war in Iraq and the war on terror. Each of us knew Americans on the ground in Iraq, and neither of us was impressed with the coverage of the war on terror in the popular media. In talking about the legality of the Bush administration’s moves in each of these conflicts, moreover, we thought about how terribly partisan the analysis of policy decisions had become, and we thought we could make a contribution to the debate by focusing, in a neutral way, on an institutional actor that seemed to be neglected: the United States Congress.

These discussions led to a series of essays published in the on-line journal Jurist, as well as to a larger project, a law review article about the Bush administration’s proposal to use secret evidence in the trials of terrorism detainees. That article was published in a symposium issue of the Roger Williams University Law Review on military justice in 2007.

Somewhere along the way, our work attracted the attention of an editor at the Vermont office of Ashgate Publishing, based in England. He contacted each of us separately to ask whether we had any interest in pulling together into a book some of the ideas we’d been toying with for a couple of years. This was in the spring of 2008. At the time, neither of us had written a book, or had much idea what it would take to turn one law review article and a handful of short essays into a longer work focusing on the issue to which we kept returning: the importance of Congressional involvement in foreign affairs and national security decisionmaking.

But once we decided we had more to say, we also discovered the writing was easy. In fact, working on the book became something of an attractive nuisance: each of us had other scholarly projects in process, as well as a full teaching load at New England School of Law, yet working on the book proved to be a welcome diversion from those responsibilities.

We learned something important in the process: It helps to collaborate. Collaboration is sometimes looked down upon in the legal academy, and for no good reason that we can discern. By collaborating on this project, we were able to get a manuscript to the publisher within months, rather than years, and see the book published in time for it (hopefully) to be relevant.

BRIGHT IDEAS: Susan Brewer on Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Deven Desai — Mon, 10 Aug 2009 21:31:49 +0000

Today’s Bright Ideas post comes from Professor Susan Brewer. Professor Brewer teaches history at the University of Wisconsin-Stevens Point. She is the author of To Win the Peace: British Propaganda in the United States during World War II. Today she shares how she the ideas behind and how she came to write her latest book, Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq. As someone who loves history and studies of the way media is used to shape agendas, this books looks like a winner. But I’ll let Professor Brewer explain more on that.

PROFESSOR SUSAN BREWER

Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Why America Fights explores the packaging and sale of war aims by the U.S. government to the American people over the past century. It analyzes propaganda in six wars—the Philippine War, World War I, World War II, the Korean War, the Vietnam War, and the Iraq War—intended to rally public support by showing Americans that they fight for democracy, freedom, security, and economic opportunity. Such messages from “to make the world safe for democracy” to “protect the American way of life,” assure the public that their ideals and interests are one and the same.

I had the idea for this project while I was working on my first book, To Win the Peace: British Propaganda in the United States during World War II (1997). It examines the British government’s careful efforts to construct a lasting “special relationship” with the United States when it recognized that only its wealthy ally had the power to help the depleted British Empire through postwar recovery. Propagandists analyzed U.S. political culture to determine the best way to win American hearts and minds. For example, to overcome what they called the “ancient grudge” held by Americans against the British Empire, British officials sought to link the empire with America’s epic frontier past so popular in films and novels. They called their theme “white men in tough places.” Although officials acknowledged the racist nature of such a message, they thought it would encourage white Americans to identify with the colonizer rather than the colonized. Besides they knew that most African Americans were not allowed to vote. Intrigued by the way in which British policymakers defined their interests and constructed appealing messages to promote them to the American public, I wondered about U.S. government efforts to do the same.

My research also was influenced by the George H. W. Bush administration’s presentation of the Persian Gulf War of 1991. I observed how the administration used explicit and implicit references to past wars to justify the current one: the comparison of Iraqi leader Saddam Hussein to Adolf Hitler; the story of the invading Iraqi troops pulling the plugs on incubators holding Kuwaiti babies, later discredited, which recalled World War I propaganda showing the invading Germans bayoneting the babies of Belgium, also later discredited; and the steady assurance that the Persian Gulf War would not be another Vietnam. These themes, I thought, had a lot to do with popular history and culture and not so much to do with U.S. foreign policy in the Middle East. I wanted to investigate just what government officials have chosen to tell and not to tell when convincing the American people to support war.

To see how various administrations defined their war aims and then how they decided to present them to the public, I conducted research at the National Archives, the Library of Congress, and the presidential libraries. I analyzed the resulting messages as delivered through speeches, posters, movies, radio shows, television appearances, magazine ads, and news stories. What I found was that to promote war aims dedicated to defeating the enemy and expanding U.S. power, propaganda portrayed Americans as liberators, protecting civilization and advancing progress. “To make the world a decent place to live in,” declared a World War I poster. In this case, as in others, the world failed to live up to its projected image, leaving Americans feeling disillusioned about their intervention in the Great War. One of the goals of official propaganda in World War II would be to restore public confidence in America’s global mission and build a consensus in favor of ongoing U.S. commitments overseas.

From war to war, propaganda revived the portrayal of the United States as a just and benevolent nation using its power to create a better world. In doing so, it typically focused attention on American cultural beliefs rather than global realities, presenting idealized versions of the United States and its allies while dehumanizing the enemy. It sought to win over the American people by appealing to what they wanted to believe about themselves. I hope that readers of Why America Fights will consider why these official constructions of wartime national identity remain so compelling.

Bright Ideas: Dan Markel, Jennifer M. Collins and Ethan J. Leib on Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Deven Desai — Tue, 09 Jun 2009 16:06:00 +0000

Today’s Bright Idea comes from Dan Markel, Jennifer M. Collins, and Ethan J. Leib. Dan is the D’Alemberte Professor of Law at Florida State University College of Law and of course blogs at Prawfs. Jennifer is an associate professor of law at Wake Forest University School of Law. Ethan is an associate professor of law at U.C. Hastings College of Law. All three have impressive track records as scholars with articles appearing in the Yale Law Journal, Northwestern University Law Review, Iowa Law Review, Emory Law Journal, and many other excellent publications among them. With such an impressive group behind Privilege or Punish: Criminal Justice and the Challenge of Family Ties, I am quite pleased to present Dan Markel, Jennifer M. Collins, and Ethan J. Leib as they share the shape of their ambitious book. In addition, the essay explains how the project began and evolved. Both parts offer insights well worth the read.

DAN MARKEL, JENNIFER M. COLLINS, and ETHAN J. LIEB

First, we want to thank Deven and the Co-Op crew for the chance to share some thoughts about our book and the story behind its writing. Privilege or Punish: Criminal Justice and the Challenge of Family Ties is a book that tries to answer two basic but under-appreciated questions. First, how does the American criminal justice system (writ large) address a defendant’s family status? And, second, how should a defendant’s family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination?

The Shape of the Book

The descriptive part of the project originally began as a chance to ruminate upon contemporary “Antigone” situations where one’s loyalties to the state stand in tension with one’s loyalties to family members. Think of David Kaczynski, the Unabomber’s brother, or Bernie Madoff’s sons—they all called in the authorities to arrest their family member. But we soon realized the Antigone problem was only one of many sites where the state’s criminal apparatus and family intersected.

Consequently, we sought to survey the various spaces within the criminal justice system in which defendants are either benefited or burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider just a few: most states give spouses a right to refuse to testify against their spouse in a criminal proceeding and some even permit a spouse to block the testimony of a spouse who is willing to testify; almost twenty states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member; many states permit or require sentencing discounts to offenders who are parents with care-giving obligations; most states impose duties to rescue, supervise and support children and the breach of those duties renders one eligible for criminal sanction; most states have bigamy and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant. These are just some of the various “family ties benefits” and “family ties burdens” in our criminal justice system.

Naturally, we weren’t satisfied with merely cataloguing these benefits and burdens. We also wondered how policymakers and courts *should* view these laws. And so we established a framework of analysis for these benefits and burdens, one that was inspired by, but not identical to, the framework used to scrutinize suspect classifications in constitutional law. To sum up our various conclusions crudely, we basically claim that the state should exercise substantial caution and indeed skepticism to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we concluded that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.

Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties burdens and benefits are often expressively denigrating the lives of those who don’t live by the rules of a heterosexist and often repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation.

By offering both our descriptive and normative claims, we hope to be doing something different and important. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the variety of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one’s family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that we hope will be of interest to anyone seeking the improvement of our criminal justice system.

Below the fold, we talk a little about how the evolution of our book from idea to reality.

The Path of the Book

The arrival of our book followed a path of twists and turns. Initially, the project began as a casual conversation between two of us about a future collaboration about “Antigone” conflicts between family loyalty and obligations to the state. But that idea languished on the back-burner for a while until, in late 2005, a third author joined the conversation and provided the enthusiasm to move us from abstract conversation to action. After some discussions, we hatched a plan to study and critique the range of intersections between family and criminal justice.

In retrospect, and quite oddly, we primarily saw only the areas where the criminal justice system extends benefits on account of family status or family ties. So we made an early division of labor for that descriptive research, and expressed the intention to revise and edit each other’s work, both on the descriptive and normative sides. That first project included matters such as parental discipline defenses, evidentiary privileges, pretrial release, sentencing discounts, and prison accommodations.

But as we were finishing up that project, we quickly realized there was a flip side to the area we were looking at: namely, the family ties burdens, that is, those burdens defendants face on account of family status in the criminal justice system. (These burdens include duties to rescue, support, and supervise, as well as bigamy, adultery, and incest.) At that point, we realized we had a spin-off project to be written, and the idea of doing this is as a book was born quite naturally.

In late 2007, we put together the proposal for the book as a whole, and circulated it to a few publishers; at that point, we weren’t sure whether to go ahead and write the second part of the project as an article also, or to hold off and save it for the book. When we heard good news from the inimitable Chris Collins of Oxford University Press, we proceeded on both fronts—article and book. [This two-front strategy initially surprised us but it did make sense: the publishers get to enjoy the benefits of having student editors work diligently on the piece, saving them editing costs and also helping publish a more polished product as a book.] We were grateful also that the law review in which we published the second half of the project also offered us the chance to have some critics write responses in a mini-symposium on the piece, now known as Punishing Family Status. Professors Rick Hills and Michael O’Hear both wrote penetrating and provocative essays in response to this second article of ours, and we tried to muster some response both in the Boston University Law Review and in the final version of the book.

Looking back, it’s pretty clear that this was an unusual collaboration. There are three authors, but in this case there was no obvious way for us to divvy up the work. Although all three authors had written on criminal law before, we had varying levels of expertise in the literatures of criminal law, political theory, and family studies. That two of the authors had never met in person until the book was two-thirds written made it all the more challenging. But at least from the authors’ perspective, the effort was worth it. Thousands of e-mails, hundreds of drafts, tens of conference calls, and only a single in-person breakfast all together at AALS in January 2008!

Not that there weren’t issues that we disagreed on: especially in the second half of the project, we had issues to work out about the regulation of incest and sex with minors that are not easy to get three opinionated people to agree about. And thus, the book does reveal some seams that we used to patch together our disagreement — sometimes we just had to say that we were not unanimous on the resolution of a very few issues, which we knew wasn’t an orthodox way to handle it. Nonetheless, it was a workable solution that we think gives a feel for the range of disagreement that is permissible even within the theses of the book.

All that said, we hope people enjoy reading it at least as much as we enjoyed planning, researching, and writing it together. As we mentioned elsewhere, we are very keen to disseminate the ideas and policy proposals of the book, so if you have any trouble getting access to the book, please just contact Dan Markel (markel at post.harvard.edu), and he’ll be happy to send you a PDF of the book for free.

And if you’re interested in considering reviewing the book, you should also contact him or the OUP Publicity person, Ninell Silberberg (Ninell.Silberberg@oup.com), and we’ll send you a review copy of the book as soon as possible. In the meantime, if you want to learn more about the book’s contents or see some testimonials about the book, you can do so by clicking here.

Dan Markel is D’Alemberte Professor of Law at Florida State University.
Jennifer M. Collins is, effective July 1, Professor of Law at Wake Forest University
Ethan J. Leib is Associate Professor of Law at UC-Hastings College of Law.

BRIGHT IDEAS: David Sugden on Gray Markets

Deven Desai — Mon, 13 Apr 2009 21:18:12 +0000

Today’s Bright Idea comes from David Sudgen. David is a partner at Call, Jensen & Ferrell, where he specializes in intellectual property, trade secret, copyright, technology, business torts, and brand protection. His book, Gray Markets, (Oxford University Press) goes into an area that trademark folks should, but may not, know about: the way in which globalization has affected the use of trademarks and the enforcement of trademark rights. As the description puts it “From cars to cigarettes to pianos to pharmaceuticals, products that were manufactured to be sold in other countries are finding their way back to the United States where they are sold through unauthorized and illegal channels. This unauthorized economy – the ‘gray market’ – is growing in size and scope at an alarming rate: information technology manufacturers alone have estimated losses at $40 billion in annual sales. In Gray Markets: Prevention, Detection, and Litigation, David Sugden provides the first comprehensive analysis of the gray market as well as a blueprint for attorneys and businesses to prevent, detect, and litigate gray market cases.” As someone who once enforced trademarks and now questions the trademark system, David’s book intrigues me as it provides valuables examples of experiences, problems, and how trademark holders react to the changing business landscape.

So here is David Sugden explaining how he came to write a book about the world of Gray Markets.

DAVID SUGDEN

Relatively early in my career, I did a great deal of work enforcing trademarks and copyrights against those in the business of stealing or knocking off branded goods. Among the challenges in these cases is catching the wrongdoers in the act. Because companies in the business of faking goods are also in the business of secrecy, we had to employ the tools of litigation that would allow us to surprise defendants and catch them red-handed.

In civil litigation, the usual practice requires serving a defendant with a summons and complaint and affording it between twenty and thirty days to respond. If the defendant is dishonorable, it can take advantage of this window by doing everything possible to cover its tracks; documents will be shredded, electronic evidence will be scrubbed, and any other indicia of wrongdoing will disappear. To prevent the destruction of such evidence in counterfeit cases, we would often request the Court to grant us the ability to conduct a surprise search and seizure of the defendant’s premises.

To obtain such an order, we would file the complaint under seal to prevent public disclosure of its contents. We would simultaneously submit a motion that outlines – with evidence – why the defendant is liable and why the defendant could not be trusted to preserve evidence of its culpability. Once satisfied with our evidentiary showing, the court would issue an order allowing us, with the assistance of law enforcement and forensic computing experts, to execute a surprise search and seizure of all counterfeits, knock-offs, stolen goods, and supporting documentation. Over the years, I was involved in such seizures all over the country; California, New Jersey, Florida, Texas, Oklahoma, and Georgia.

When we would execute these orders, I was often surprised to see how often counterfeit goods were comingled with genuine branded goods. Even though these businesses had no right to sell genuine goods, their inventories would often contain large quantities of genuine goods alongside large quantities of inferior imitations. In fact, the defendants would often argue that they were not guilty of selling counterfeit goods – they would argue, albeit falsely, that they were simply involved in the lawful secondary (i.e., gray) market.

This gray market vexes brand owners because goods intended for overseas distribution are finding their way back to the United States through unauthorized sales channels. Authorized distributors and resellers are similarly annoyed because they must compete against unauthorized resellers selling the same products at lower prices. And, of course, consumers can suffer if the gray market goods are comingled with counterfeit products or if the genuine product is otherwise compromised by inferior packaging, transporting, or servicing.

As I examined the strategies and existing laws, I thought a great deal about what brand owners could do to prevent the gray marketing of their products from occurring in the first place. Beyond courtroom strategies, I considered actions to prevent brand abuse and avoid the time and expense of civil or criminal prosecution. I also observed an absence of any treatise or other authority that had synthesized the existing body of gray market law. It was these factors that lead me to the idea of writing Gray Markets: Prevention, Detection & Litigation.

In Gray Markets, I introduce a variety of strategies that brand owners can use prevent genuine goods from unauthorized distribution channels. From educational and contractual methods that communicate the importance of gray market abstinence, to on-site security and modern tracking technologies, and to the use of private investigators and even “dumpster dives,” the book then offers specific methods to detect the existence of brand abuse. And, finally, the book provides a summary of the legal theories and authorities that are relevant in gray market litigation.

BRIGHT IDEA: Julia Angwin on Stealing MySpace: The Battle to Control the Most Popular Website in America

Deven Desai — Thu, 02 Apr 2009 23:12:40 +0000

As some of you know, John Scalzi is a good friend of mine. His Big Idea series inspired our Bright Ideas series here at Concurring Opinions (John was gracious enough to let me ping off his series). John’s series usually focuses on science fiction, but a recent post highlighted Julia Angwin’s new book, Stealing MySpace: The Battle to Control the Most Popular Website in America. As John notes, Julia is the Senior Technoloy Editor of WSJ.com, the Wall Street Journal’s web site.

Julia’s impressive experience makes her well positioned to offer insights about MySpace. She has covered technology for the San Francisco Chronicle in 1996 “including Microsoft’s antitrust woes”; was named “Outstanding Young Journalist of the Year” by the Northern California chapter of the Society of Professional Journalists; and won a Knight-Bagehot fellowship in journalism for studies at Columbia Business School. She obtained an MBA at Columbia in 2000 and then started her career with The Wall Street Journal in New York. As her bio explains she “cover[ed] technology and the dot-com boom from an East Coast perspective. The rise and fall of the AOL Time Warner merger was an important part of [her] beat. In 2003, [she] was on a team of reporters at The Wall Street Journal that was awarded the Pulitzer Prize in Explanatory Reporting for coverage of corporate corruption.”

I liked the post and luckily Julia and John said they did not mind me reposting the entire post. So here’s Julia.

JULIA ANGWIN:

As a nonfiction writer, I don’t get to choose the ‘big idea’ in my work. All the ideas – large and small – arise naturally from the facts I uncover. My job is to take the facts, stare at them hard and extract the ideas from them.

When I began writing Stealing MySpace, I thought that the ‘big idea’ that would emerge would be about the remix generation – the kids who were using MySpace to reshape their digital worlds. After all, weren’t they changing the world with their behavior?

But, in fact, the big idea that arose from my reporting was altogether different. It was this: what does it take to be a successful entrepreneur?

Early in my investigation, I discovered that the founders of MySpace were scammers. Before they started the social-networking site, they sent spam, distributed spyware, and peddled spy cameras you could hide in your shoe and e-books touting “how to grow taller” and “how to hypnotize people.” MySpace was just an idea they copied from a popular Web site at the time, Friendster.

MySpace’s parent company, Intermix, wasn’t much better. It made most of its money selling subscription wrinkle cream and diet pills online, had a spyware business of its own, and had a thriving animated greeting card business best known for its fart and poopy diaper jokes.

In the book, the venture capitalist who backed Intermix (and was initially reluctant to support MySpace) David Carlick says why he’s not worried about the unsavory parts of Intermix. “Marketing has always been on the scary edge of ethical.”

This was a vastly different story than the canonical tech startup tale. This oft-told narrative stars a Bill Gates genius-type founder dropping out of Harvard to work on his technological breakthrough in a garage somewhere.

This was the story that I absorbed into my pores as a kid growing up in Silicon Valley, and then as a reporter covering the industry.

Meeting this new type of success story I wondered: were the MySpace founders just lucky? Or was their hucksterism part of what it takes to succeed?

One solution presented itself to me: Web technology had finally become easy to use. No longer were Web companies going to be run by engineers; now they could be run by marketers, too.

But then, slowly, it dawned on me that the Silicon Valley tale I’d grown up on was a bit of a myth. Hadn’t these tech companies really been run by marketers all along? Bill Gates, although he was a brilliant programmer, was an even more brilliant marketer. Ditto for Steve Jobs, whose marketing prowess is such that he is considered a “reality distortion field.”

And thus I stumbled onto my big idea: The greatest entrepreneurs are hucksters who have simply crossed the line into brilliance.

—-

Stealing MySpace: Amazon | Barnes & Noble | Powell’s

Read an excerpt of Stealing MySpace (pdf link). Visit Julia Angwin’s blog. Follow Julia Angwin on Twitter.

Economics and Entrepreneurial Finance

Darian Ibrahim — Fri, 13 Mar 2009 01:55:43 +0000

(I seem to have the blogging bug today, so I’ll take the advice on my last post and blog shamelessly about my new article!)

Economic theory holds that money is fungible: any unit of money is an adequate substitute for another. But my research on entrepreneurial finance, which analyzes and compares different sources of financial capital available to high-tech start-ups, suggests that this isn’t always the case. In my new article Financing the Next Silicon Valley, I show that differences in financing options may explain why we don’t have more Silicon Valley-like regions in the U.S. With our other economic engines (manufacturing, financial services) in rapid decline, a competitive economic strategy for our nation must include more tech-driven innovation. Entrepreneurial finance is a huge part of that (after all, what do start-ups lack: money!), and not all money is created equal.

My article compares three major financing sources for start-ups: private venture capital, state-sponsored venture capital, and angel investor groups. Private VC is smart money – the dollars also come with the VC’s expertise on start-up development and networking benefits. (Case in point: eBay went with the Silicon Valley VC Benchmark Capital primarily for the VC’s connections, which led to Meg Whitman taking on the CEO position.) But on the downside, private VC is heavily concentrated in existing tech regions like Silicon Valley, and also not available to the early-stage start-ups that need it most. In step the states, which set up their own VC funds with taxpayer dollars to try and fill the financing void for their neglected, home-grown start-ups. But the states, without any expertise in this area, just muck it up with their inability to pick the best start-ups ex ante or help them develop ex post. A new solution, the angel investor group, offers more hope for the future. Like private VC, angel groups are private actors who offer smart money; like state VC, that money is spread out to more regions and available to early-stage start-ups. It’s the best of both worlds.

In short, comparative entrepreneurial finance is important, both theoretically and practically. This sort of money, contrary to popular economic thinking, is not all fungible.

BRIGHT IDEAS: Mary Dudziak on Exporting American Dreams: Thurgood Marshall’s African Journey

Deven Desai — Thu, 19 Feb 2009 21:56:18 +0000

Today’s Bright Idea comes from Professor Mary Dudziak. Professor Dudziak is the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California. Her most recent book is Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford, 2008). Many know of Thurgood Marshall’s role in U.S. politics and as a civil rights leader. Professor Dudziak’s book details Marshall’s experiences in Kenya where he helped write their constitution and found himself “himself protecting the rights of a new kind of minority: white landholders soon to lose political power.” “Before long, Marshall would become the Supreme Court Justice we remember him for. The life lessons he would take to his work on the Court included his African journey, which reinforced his faith in law and minority rights as a way to perfect democracy. Marshall would tell everyone about Kenya. But the story of his work in Kenya has never been told.” Professor Dudziak’s book tells that story.

Here is Professor Dudziak explaining what lead her to write Exporting American Dreams: Thurgood Marshall’s African Journey, and the adventures she had while researching it.

MARY DUDZIAK

“When I did the constitution for Kenya,” Thurgood Marshall once told Juan Williams, “I looked over just about every constitution in the world to see what was good.” He pounded his fist on the table for emphasis, and added: “And there’s nothing that comes close to comparing with this one in the U.S. This one is the best I’ve ever seen.”

Yet Thurgood Marshall’s Bill of Rights for Kenya, long hidden away in a British archive, did not incorporate American clauses. Instead large portions were borrowed from the Universal Declaration of Human Rights, and new constitutions of Nigeria and Malaya were also important sources. This American civil rights lawyer, soon to become a Supreme Court Justice, embraced forward-looking social welfare rights, including rights to subsistence, education, and health care.

But how did Marshall end up in Kenya? This book started with a question that grew out of research on my first book, Cold War Civil Rights: Race and the Image of American Democracy. That work made it clear that American law has played a role in U.S. public diplomacy. The image of American constitutionalism and rights has been important to the construction of American identity around the world (something we learned again the hard way in the era of Abu Ghraib). To focus more on the story of American law in the world, my starting point was simply to follow American lawyers overseas. But then I learned that Thurgood Marshall participated in deliberations on an independence constitution for Kenya. Before long, Marshall’s work in Kenya became the focus of the book.

Exporting American Dreams tells the story of how Marshall came to work on the Kenya Constitution, and what he thought about it. The project combined all the things that make it so great to be a legal historian. It involved detective work that took me to three continents, but this time I would find myself not only in dusty foreign archives, but at one point on a hilarious journey with a Kenyan tour guide in an attempt to follow in Thurgood Marshall’s footsteps in that country. I had to learn new things, including law and politics in the colony and country of Kenya. And the research revealed unexpected paradoxes, including Marshall’s deep affection for Kenya’s first president, Jomo Kenyatta, even as he turned the Kenya Constitution into a tool for executive excess, rather than a limit on power. In contrast, Marshall held the framers of his own nation to a different standard, finding their own compromises over rights at the American founding to be unacceptable. And finally, it gave me an opportunity that so many writers yearn for: it was simply a great story.

The narrative is transnational, setting the Kenya story in the context of Marshall’s public life in the 1960s, when he transitioned from the NAACP Legal Defense Fund to the Second Circuit Court of Appeals, to Solicitor General, to Supreme Court. This is a dynamic part of his life, often given short shrift in treatments that focus on Marshall as a lawyer or Marshall as a Justice.

Marshall traveled to Africa for the first time on his trip to Kenya in January 1960. He would call it his homeland. As an advisor to indigenous Kenyan political leaders, he was the only non-British, non-Kenyan person to participate in the Lancaster House Conference on the Kenya Constitution in London soon afterward. He would return to Kenya in 1963, asked to travel to Africa by the State Department, as was Earl Warren and others, in an attempt to redress the damage to the American image around the world from the civil rights crisis in Birmingham, Alabama earlier that year. This was Marshall’s triumphant return as Kenya neared independence, but he was angered to learn that the new Constitution was not preventing discrimination against Kenya’s Asian minority.

In the midst of this work, Marshall also encountered changes in civil rights at home. The Greensboro lunch counter sit-ins began on February 1, 1960 as he was working on the Kenya constitution. While Marshall is often described as an opponent of the student movement, the story is more complicated, for he devoted most of his time in his final days at the LDF to raising funds to pay lawyers who would represent the thousands of students who had been arrested, and holding conferences of civil rights lawyers to develop legal theories to defend them. Marshall was afraid the students would be harmed in Southern jails, and he thought there was a safer path to social change, even as the 1960s seemed to reveal that sometimes change requires a conflagration. These intertwined African and American narratives reveal Marshall’s emphasis on law as a means of social change in the context of violence.

Marshall’s Bill of Rights for Kenya, annotated to illustrate the sources Marshall borrowed from,

is included as an Appendix to the book, making it available in the United States for the first time.

BRIGHT IDEAS: David Post on In Search of Jefferson’s Moose

Deven Desai — Wed, 21 Jan 2009 21:29:38 +0000

Today’s Bright Idea was along time in the making. David Post of Temple University’s Beasley School of Law and the Volokh Conspiracy began this project more than ten years ago. I am excited David chose to write a piece about his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford, 2009), for Bright Ideas for few reasons. The book explores a challenging idea about how we think about the Internet and the way it is governed. In addition, David shares how a lone idea expanded until it became a major project and a book. For anyone thinking about writing a book, David’s piece offers insight regarding how a research agenda is born and grows. As books are becoming a larger part of legal scholarship, David’s tale provides insight about what a commitment writing a book can be. Last, where else can you see what Jefferson, Hamilton, and a moose might have to do with understanding the Internet (honestly, David ties them all together)?

So here’s David on his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace:

DAVID G. POST

The Internet and Jefferson’s Moose

In 1995, I wrote a small essay for the Electronic Frontier Foundation’s then-newfangled “website,” entitled “Jefferson in Cyberspace.” Though I didn’t know it at the time, I was starting a project that would consume much of the next thirteen-plus years of my life. The essay itself wasn’t particularly noteworthy. Its thesis was pretty simple: I suggested that the great opposition between Jefferson and Hamilton – between de-centralizers and centralizers, Republicans and Federalists, between centripetal and centrifugal forces, between chaos at the frontier and order projected from the center – was being played out before our eyes, in real time, reflected in the early battles to regulate and control the emerging Internet. And I (rather glibly) suggested that on this most radically de-centralized of networks – the one that managed to reach every corner of the globe without having anyone in charge – Jefferson and his followers seemed to have the upper hand.

It was, to be candid, too flip – a blog posting before there were blogs, an interesting little idea without a great deal of deep thinking behind it. But in contrast to many of my interesting little ideas, the more I thought about this one the more interesting it became. There really did seem to be something “Jeffersonian” about the Net; it was, somehow, obvious (and many people commented on it at the time), but I couldn’t quite put my finger on exactly what it meant, or what made it so. And the world of Internet law and Internet policy really did seem to be divided between Jeffersonians and Hamiltonians, who came forward with their opposing positions on all the big issues of the day, from the exercise of jurisdiction over Internet conduct to the operation and management of the domain name system, the regulation of Internet anonymity, encryption policy, the scope of free speech protection on the Net . . . .

And then there was Jefferson himself. The more I read of (and by) him, the more interesting he became, too. The variety of his intellectual pursuits (from architecture to mineralogy to zoology, with pretty much everything in between) was so astonishing; he may well have been the only person in history who was, to use Isaiah Berlin’s well-known dichotomy, both a great Hedgehog and a great Fox, propounder of some of history’s greatest Big Ideas and simultaneously one of the planet’s leading experts on cartographic techniques, viniculture, canal-building, plow design, linguistic evolution, paleontology, . . . . What was he up to? What held it all together? What connected the Declaration of Independence to the Big Bone Lick (Ky.) fossils that he pored over in the White House basement? The “Summary View of the Rights of British America” to the study of Native American languages? The Virginia Statute for Religious Freedom to the design of meteorological measuring devices?

He was on to something, that much was pretty clear; but damned if I could say exactly what it was. And the closer I looked, the harder it got.

Enter, the moose – or, at least, the story of the moose. A few years into my reading, I stumbled upon the story (in Daniel Boorstin’s wonderful The Lost World of Thomas Jefferson, if I recall correctly): In 1787, Jefferson had the complete skeleton and carcass (with antlers) of an American moose, 7 feet tall at the shoulders, shipped to him in Paris (where he was serving as the American Minister to the court of Louis XVI), re-assembled, and installed in the entrance hall of his residence. In a letter to a friend, he called it “an acquisition more precious than you can imagine.”

It’s an amusing little episode, Jefferson at his most lovably eccentric; you may recall it being used for that purpose in the popular film from a few years back, “Jefferson in Paris,” and for years I did the same. As I kept working through these ideas, trying to link up Jefferson’s ideas with some ideas about law on the Internet that my colleagues and I were wrestling with, I’d often begin presentations and talks (and even, on occasion, scholarly papers) with the moose story – just to loosen things up a bit, to get the audience in a good frame of mind. “What was he up to?,” I’d ask. An acquisition “more precious than you can imagine”? Was he serious?

It was just a rhetorical device, and a rhetorical question – at first. Looking back, I see that the inflection point marking the moment that the project actually started taking shape as a book was when I started to take the question seriously myself. Really — what in heaven’s name was he up to?

Asking the question that way helps unlock some of Jefferson’s most interesting, and most revolutionary, ideas, because he was up to a great deal, as it turns out. The moose stands, as it were, at the hub of a peculiarly Jeffersonian network of ideas and problems and plans. To begin with, there’s the question of scale. Jefferson cared deeply about scale, about the principles – the “laws of nature and nature’s God,” as he put it – governing the growth and size of things, how they get bigger, how they get smaller, and why. The moose was one component of an argument that Jefferson was having about the relative sizes of New World versus Old World animals. A theory, gaining ground among European scientists, held that animals in the New World were actually smaller – degenerate – versions of their Old World counterparts. Jefferson thought it was hogwash; he devoted much of his book “Notes on the State of Virginia,” published the year before, to a detailed empirical refutation, complete with tables and charts and exhaustive listings of animals large and small. And the moose – the largest of the New World quadrupeds, far larger than any of its Old World relatives – was to be the coup de grace, as it were, the final nail in the coffin.

It all looks a bit ridiculous in retrospect, but it wasn’t ridiculous at the time. The study of animal size and scale not only pointed the way to the development of Darwin’s theory of evolution by natural selection, it helped Jefferson solve one of history’s great scaling problems: the Problem of the Extended Republic. “Montesquieu’s Law,” as it was sometimes known, held that republican government – government by the People, where the governed control the governors – couldn’t scale; it could never be made to work over large territories, where the forces of anarchy and lawlessness would necessarily prevail unless military force were applied. Jefferson thought that was hogwash too, and he spent much of his life figuring out how to “scale up” republican institutions so that they could span the American continent. The only thing more incredible than the plans he came up with to get that done is the fact that most of it actually came to pass.

And scaling questions, I began to realize, are of the deepest importance for our understanding of the Internet, because the Internet is a phenomenon defined entirely by its scale: the network we call “the Internet” is the one, out of the hundreds of thousands or millions of networks out there, that somehow got to be really, really, big. As someone once put it: It’s not big because it’s the Internet, it’s “the Internet” because it’s big. How did that happen? Why this network and not some other? Can it keep growing and, if so, for how long?

Unless we understand all that, we don’t really understand this new place at all.

But is it, really, a “new place”? I’ve had many, many discussions over the years with my colleagues about that, and it finally hit me: Time to bring out the moose! Jefferson didn’t want the moose only for purposes of persuasion, he wanted it to dazzle – and a moose is, to be honest, a pretty dazzling creature. He wanted viewers to step back and say: “Whoa – we’ve never seen anything like that before!” He wanted to dazzle because he wanted people to believe that there really was a “new world” over there, because if they believed that then they could sweep aside old prejudices and old ways of thinking and begin the process of re-engineering society, and government, and politics. He had plans for the new world, plans that could never be realized until people believed that it was, in fact, a “new” world, because only when they believed that, amazingly enough, was it likely to become true.

We are going to need some new thinking about society, and government, and politics for the global Net; our old ways of thinking, based on lines projected onto a physical map, will not work – not at global scale, and not on a global network where everyone can communicate instantaneously with everyone else. Many people, I realize, don’t agree, and to win them over I need to marshal the arguments and persuade – which I’ve tried to do so, in my book. But I also need to find a moose, something to dazzle the inhabitants of the Old World – not Europe, but the “old,” pre-Internet world of, say, 1980 or 1950 – so that they can see that this really is a new place, with things in it that they have not seen and cannot even imagine. “Whoa – we’ve never seen anything like that before!” Then (but possibly not until then) we can start thinking about how we can, once again, scale up our legal and political institutions and processes, this time to global scale, so that they work better in this new place.

So what does cyberspace’s moose look like? Well, I have some ideas and some candidates – but my publisher told me not to give away the punch line to the book. [Hint: it’s a gigantic compendium of information, available in over 50 languages, put together by hundreds of thousands of anonymous volunteers, without pay, and it serves as the most widely-consulted reference work ever written). I’d like to hear your ideas, though – come join the discussion at http://jeffersonsmoose.org.

********

David G. Post is the I. Herman Stern Professor of Law at Temple University, and is the author of In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford, 2009). He can be contacted at David.Post@temple.edu, or at www.jeffersonsmoose.org.

BRIGHT IDEAS: Timothy Zick on Speech Out of Doors

Daniel Solove — Wed, 14 Jan 2009 18:29:24 +0000

Professor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.

SOLOVE: What’s the central idea in your book?

ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.

SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?

ZICK: Well, one might say, so what? In the digital age, many speakers and audiences have migrated to the virtual realm. That’s certainly true. But more traditional places and methods of public expression remain critical to our expressive culture. One of the most fascinating aspects of my research was the discovery that despite longstanding criticisms regarding the efficacy and salience of public protest and other forms of public expression, people still gather in public places – sometimes in great numbers – to demonstrate and communicate. Material and “cyber” places serve very distinct participatory functions. A self-governing society needs both types of places. Given their lower costs and broader reach, cyber places are ideal for networking, broadcasting, and shaping public opinion. With their visibility and physicality, material public places offer distinct advantages in terms of exerting public pressure on citizens and officials, countering the effects of citizen “narrowcasting,” and creating solidarity.

SOLOVE: Should the law preserve free speech rights on private property? If so, how and when?

ZICK: If the expressive topography is in fact eroding, and if we ought to be concerned about that, what if anything can be done? I offer several proposals and suggestions, each geared to the particular type of place on the topography and the “gap” that needs to be filled. In very brief terms, new attitudes and behaviors must be encouraged, different landscapes and architectures must be envisioned and constructed, and legal doctrines must be revisited and in some cases revised.

Perhaps the most controversial of the specific proposals in the book relate to the treatment of “private” property. The contemporary expressive topography contains far too many places in which audiences are “protected” from speakers – in shopping malls, airports, subdivisions, gated communities, recreational areas, privatized urban tunnels and skyways, and sprawling college and university campuses. Much of this erosion has occurred through the “demotion” of spaces that once were public forums and the failure to preserve expressive liberties in modern simulated downtowns and public squares. I propose preserving some space for expression in these and other modern spaces, through a combination of reliance on state constitutional provisions and property doctrines, imposition of development conditions, urban and suburban planning, community activism, and more exacting judicial review of forum demotions.

SOLOVE: Tim’s book is Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). It is available in paperback and is priced very reasonably. Pick up your copy today!

BRIGHT IDEAS: Trade Secrets, Law and Practice

Deven Desai — Mon, 22 Dec 2008 21:27:57 +0000

As the second book in the Bright Idea series we have Trade Secrets, Law and Practice (Oxford University Press). David Quinto and Stuart Singer are the authors. David is a founding partner and head of internet litigation at Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles, CA. Stuart Singer is a partner at Boies, Schiller & Flexner, LLP. I know David from my time at Quinn Emanuel and from our work together on The Law of Internet Disputes (Aspen).

The case that spurred David to write Trade Secrets was in its early stages when I was at the firm. Now, more than ten years later, the book is out. It has drawn priase from Jim Pooley (the author of one of the most useful treatises on trade secret law), Lance Liebman (a former Columbia Law School dean who now heads the American Law Institute), and Martha Barnett (a former ABA president). So here is David explaining what drove him to explore the way trade secrets operate and the journey involved in writing the book. With that, here’s David.

DAVID QUINTO:

Trade Secrets: Law and Practice has been a long time in the making. Almost ten years ago, I got involved in a knock-down, drag-out trade secrets dispute between my client, Avery Dennison, and 3M. Avery had innocently hired three of 3M’s R&D people: one contacted Avery seeking a job in Los Angeles because his fiancée had moved there and his 3M job had just been terminated; a second wanted to re-locate to Los Angeles to be near family and landed at Avery after a head hunter sent his resume there; and the third decided to move to California after he was transferred by 3M to a facility more than an hour’s drive from his home. The three employees had worked for 3M in upstate New York, Minnesota, and Canada. Significantly, none had worked on any product competitive with anything Avery manufactured. In Los Angeles, Avery did not see any particular problem. From 3M’s viewpoint in St. Paul, however, matters appeared more ominous. 3M and Avery competed in many areas and not only had Avery hired three R&D employees in quick succession, but all three were intimately familiar with technologies that could potentially be useful in manufacturing Avery’s products.

The litigation lasted several years. In the process, the parties conducted exhaustive discovery. Among our surprises were the discovery that 3M’s crown jewel trade secret had been patented (and, hence, wasn’t a trade secret at all) and that another claimed trade secret had been surreptitiously published by 3M as a hedge against the possibility that a competitor might independently discover it and attempt to patent it. At the end, there was no evidence of any use of any 3M information by Avery. However, by the time the parties entered into a confidential settlement following a three-day mediation, 3M had spent more than $30 million in attorneys’ fees leaving no stone unturned. Avery’s fees were substantially less, but were nonetheless substantial.

I was assisted in the litigation by my then-partner, Warrington Parker. On cold Minnesota nights, we thought about what the parties might have done differently to avoid incurring enormous legal fees fighting over nothing. We thought about how to prove a negative, that no information had been misappropriated. And we war-gamed the possible injunctive moves the parties could make given that the employees were all subject to non-compete agreements and given that California adamantly refuses to enforce such agreements. Could the employees be sued elsewhere? Could Avery be sued for inducing breach of contract? What would the Full Faith and Credit clause of the Constitution require with respect to enforcing in California a judgment entered elsewhere? What could be done to preempt a claim brought in another state?

After the suit was over, I continued think about problems unique to trade secrets litigation. For example, a number of states reject the doctrine of “inevitable disclosure” as a basis to award injunctive relief, but almost every state has a statute allowing a “threatened” misappropriation to be enjoined. What’s the difference? Will a “threatened” misappropriation justify the issuance of a permanent injunction, or merely a preliminary injunction? Is different injunctive relief available if a misappropriation is “inevitable” as opposed to “threatened”? Do the states that enjoin “inevitable” disclosures always do so, or only when a non-compete agreement is involved? How can a defendant find an expert to opine that something is not a trade secret when no competitor will disclose its manufacturing process? Which states will require a trade secret plaintiff to identify its trade secrets with reasonable particularity before commencing discovery? Is a state law requirement that the plaintiff identify its trade secrets before commencing discovery enforceable in federal court? Do different states follow different rules in determining whether and when ancillary claims will be preempted by a trade secret misappropriation claim? When might such claims be preempted even if no trade secret misappropriation is alleged? What defenses are unique to trade secret litigations and how are they established?

I believed that a book exploring the ins-and-outs of trade secret litigation on a state-by-state basis, written from each the plaintiff’s and the defendant’s perspective, would be useful. I also thought it would be useful to consider what measures could have been undertaken to prevent the misunderstandings that led to the 3M v. Avery litigation, the steps that a trade secret owner could take to investigate and prepare for a possible claim, how to protect trade secrets at trial, and when it makes sense to seek criminal prosecution of a trade secret thief. Eventually I submitted a book proposal to Oxford University Press, which circulated it for peer review. One of the reviews, shared with me anonymously, appeared to have been written by a law school friend, Stuart Singer. Stuart served as president of the Harvard Law Review, was asked to clerk for the U.S. Supreme Court immediately upon graduation, and is now a partner of David Boies at the Boies, Schiller & Flexner firm. I put it to him: if you’re so enthusiastic about the idea, why don’t you help me write the book? I’m enormously grateful that he agreed to do so.

BRIGHT IDEAS: Robert Tsai on Eloquence & Reason

Deven Desai — Wed, 17 Dec 2008 14:04:31 +0000

I am pleased to have Robert Tsai as our first author in the Bright Ideas series. Robert is an associate professor at American University. He started teaching at the University of Oregon, where he received the university’s Lorry I. Lokey Award for exemplary interdisciplinary scholarship and the law school’s Orlando J. Hollis Teaching Award. His papers have twice been selected for the Stanford-Yale Junior Faculty Forum: once in constitutional theory and once in constitutional history. Before becoming a professor, Robert clerked for Hugh H. Bownes, U.S. Court of Appeals for the First Circuit, and Denny Chin, U.S. District Court for the Southern District of New York. His primary research interests include American political culture, the discourses of popular sovereignty, radical constitutionalism, the rules of criminal procedure, and the interaction between courts and other institutions. And Robert has guest blogged with us too.

So here is Robert Tsai on his book, Eloquence & Reason, (Yale University Press, 2008)

ROBERT TSAI:

For as long as I can remember, I have believed in the First Amendment. But I could not put my finger on the source of this vague feeling, which ripened over time. I could not recall anyone telling me I had to obey that provision, above all others, in the United States Constitution. It just made sense. Initially as an immigrant to this country and later as a student in the public schools, I took it on faith that to be an American was to enjoy the rights to express myself and to worship as I saw fit.

Even as I began to doubt that any complex democracy could actually strike a maximal rights posture, I remained struck by just how deeply ingrained this default position was. The modern First Amendment persists even though most countries have considered and rejected the strong pro-rights position. It occurred to me that, for better or worse, the values of the First Amendment comprise elemental features of American national identity. A number of distinguished thinkers have devoted their careers to assessing whether privileging freedom of expression is normatively desirable. I have been more interested in how we arrived in such a state of affairs and what it says about our political order.

The challenging question is: how do you prove these intuitions about the First Amendment to be true? Eloquence and Reason tackles this project mostly by showing how activists, lawyers, judges, and even presidents have employed the First Amendment. In the process, they created and helped to sustain a political culture in which certain political values became privileged. An ever-tighter linkage was created in the public mind between the First Amendment and the citizen’s sense of self. A language of rights arose and became systematized. Citizens learned to characterize a wide range of social matters as First Amendment problems, and advocates became highly skilled at leveraging the comparative advantages of the various forms of constitutional discourse.

To illustrate these themes, the book juxtaposes activists who agitated for civil rights for African Americans in the 1960s with social conservatives who sought to alter the law’s relationship with people of faith in the final decades of the twentieth century. It also examines how presidents can change the way people talk and think about constitutional rights. I discuss how Franklin Roosevelt prioritized the right of conscience—an idea not mentioned in the Constitution—and thereby pressured the Supreme Court to give it greater credence. Similarly, Ronald Reagan accentuated the right of religious expression and discouraged separationist discourse in constitutional debate.

It turns out that the actual wording of the First Amendment has played a relatively small part in how the law has developed. Instead, human beings turned to the language of the Constitution to master the world around them. Except in rare cases, the Constitution does not dictate answers so much as it empowers people to battle over plausible answers. It’s an unsettling answer to some, but it’s the only satisfactory answer for why people respect the Constitution even if they have never read it; and for why one can obey the First Amendment even though a denizen of eighteenth century America would have had difficulty imagining its current form.