Archive for the ‘Culture’ Category

The Right to the Internet

posted by Danielle Citron

According to a poll sponsored by the BBC World Service, four in five adults in more than 26 countries believe that Internet access is a fundamental right.  The poll asked more than 27,000 adults about their attitudes towards the Internet and found that 87 percent of regular Internet users agree that access should be a “fundamental right of all people.”  More than 71 percent of non-Internet users felt that they should have the right to access the global network.

Crucial to our access to the Internet is our continued adherence to the end-to-end principle.  As legal scholar and computer scientist Barbara van Schewick explained in her Opening Statement at the FCC’s Workshop on Innovation, Investment, and the Open Internet, the “network was designed to be as general as possible in order to support a wide variety of applications with different needs.  So when a new application comes along, the network doesn’t have to be changed to allow the application to run.  All the innovator has to do is write the program that runs on a computer attached to the Internet.”  As van Schewick notes, the low cost of developing new applications has enabled the creation of eBay and Skype, even though many questioned those applications’ ability to succeed in the marketplace (who would buy goods through online auctions?) or their plausibility (network engineers didn’t initially think internet telephony was possible).

Now, however, sophisticated technology is available that “enables network providers to identify the applications and content on their network and control their execution.”    According to van Schewick, the “original Internet was application-blind,” but “today’s Internet is not.”  This matters to access and innovation.  Although a programmer may have a great idea for a video platform that will revolutionize the way people watch television, cable providers could squash it.  They could block the inventor’s application or slow it down.  Why would they do that?  As van Schewick explains, maybe the application competes with theirs, maybe they want a share of the inventor’s profits, maybe they don’t like the content, or maybe the application is slowed down to manage bandwidth.  Whatever the reason, the network provider can ensure the failure of the inventor’s project, chasing away potential investors and other inventors.  In the end, this risks the diversity of innovation and its concomitant societal benefits.  If network providers “pick winners and losers on the Internet, if they decide how users can use the network, users may end up with applications that they would not have chosen, and may be forced to use the Internet in a way that does not create the value it could.”

In short, our failure to commit to network neutrality, to permit discrimination among applications, has a deep impact on what people now believe is their fundamental right.  van Schewick closed her Open Statement with a telling story.  She asked if the audience had tried to explained to their partners’ grandparents why they should get the Internet.  She explained that she had and noted that she didn’t say: “Grandma, you have to get the Internet?  It’s cool!  It lets you send data packets back and forth.”  “No, I said: ‘If you get the Internet, you can call us and see your grandchildren on the screen.  And if we have new pictures, you’ll be able to see them immediately after we send them.  And you can read about everything you can possibly imagine’ . . . “  Thus, by “protecting the factors that have fostered application innovation in the past, we can make sure that the Internet will be even more useful and valuable in the future.”

  March 8, 2010 at 8:53 am   Posted in: Architecture, Culture, Current Events, Cyberlaw, Technology   Print This Post   3 Comments

Clare Boothe Luce and the Press

posted by Danielle Citron

Clare Boothe Luce was ahead of her time in many things.  In the 1930s and 1940s, she edited major magazines, gained fame for her play writing and journalism, and served as a Republican congresswoman.  She later represented the United States as the ambassador to Italy.  In a speech to the Women’s National Press Club on April 21, 1960, Luce asked “What’s Wrong  with the American Press?“  Even as she hailed the American press as the “best press in the world,” she chastised it for debasing popular taste.  She argued that “A large, unmeasurable percentage of the total editorial space in American newspapers is concerned not with public affairs or matters of stately importance.  It is devoted instead to entertainment, titilation, amusement, voyeurism, and tripe.”  She continued: “One could note that nowadays the banner of press freedom is more often raised in matters of printing crime, sex, and scandal stories than it is in matters of printing the truth about great national figures, policies, and issues.”  Luce lamented that members of the working press often sacrificed candor to curry favor with the White House, political parties, corporations, or trade unions.  The press had lost its public mission in favor of personal interest.

Luce’s speech updated the kind of deep dissatisfaction that Warren and Brandeis articulated in their seminal article The Right to Privacy.  They wrote in 1890, when the penny press eschewed the serious for the sensational and the frivolous, publishing pictures of society members and writing about their parties.  Interestingly, Luce’s speech came just in the midst of the civil rights movement, when the press fought hard and with much at stake for their right to expose Southern racism in New York Times v. Sullivan and the like.  Her dissatisfaction with the press seems out of place given the larger struggles that the media had in ensuring, as Meiklejohn noted, that “everything worth saying shall be said.”

In this sense, Luce was ahead of her time (as she was in other parts of her life).  The press of which she speaks sounds closer to today’s National Inquirer, Star, and TMZ.  It recalls sites like The Dirty, which publishes embarrassing pictures of bed-hopping and drug-taking women and botox-using, club-going, and skanky-dressing men.

This trend — which would surely garner Luce’s disapproval — has given new life to the public disclosure of private facts tort.  As Amy Gajda explores in her superb article “Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press,” courts in the early twentieth century responded to the sensational press by recognizing public disclosure of private facts actions.  In the New York Times v. Sullivan era, the pendulum swung back in favor of the press with courts embracing a robust view of the newsworthiness element of the tort to prevent the chilling of the media struggling to write about issues of public concern.  As Gajda explains, the public disclosure tort, however, of late has made a comeback with courts second-guessing the media on the newsworthiness of its stories, using (or more accurately, misusing) journalist ethical guides in upholding public disclosure claims.  Read the rest of this post »

  March 8, 2010 at 7:30 am   Posted in: Civil Rights, Constitutional Law, Culture, First Amendment, Privacy, Privacy (Gossip & Shaming)   Print This Post   No Comments

Bright Ideas: Cahn & Carbone, Red Families v. Blue Families

posted by Daniel Solove

My colleague, Professor Naomi Cahn (GW Law School) and Professor June Carbone (U. Missouri at Kansas City) have recently published a very provocative and interesting new book, Red Familes v. Blue Families: Legal Polarization and the Creation of Culture (Oxford University Press,2010).  Their book examines the fact that “red” states, despite more restrictive family law, have higher teen pregnancy rates and higher divorce rates than “blue” states.

SOLOVE: What inspired you to write the book?

CARBONE & CAHN: We saw the commentary on the 2004 election about moral values and when we saw the statistics on higher divorce rates in the red states, we reacted, “But we know why that happens, red families marry at younger ages and age is a risk factor for divorce.” When we inquired further, we found the differences were much greater than that and worth much more exploration.

SOLOVE: What are the most central ideas of the book are?

CARBONE & CAHN:  There really are two family systems , and one is in crisis while the other is doing reasonably well. The “blue” one invests in women as well as men, delays family formation until after young adults reach emotional maturity and financial independence, and views sexuality as a private matter. The “red” system is a traditional one that continues to preach abstinence, early marriage, and more traditional gender roles. The blue system arose in response to the needs of the post-industrial economy while the religious backlash against the new values has locked red families into a war against modernity.

The two systems map onto increasingly ideological divisions in American politics, and make family a point of intense contestation.

The conflict between the two systems produces counterproductive results, such as abstinence education that has the most disproportionate consequences for poor women.

The solution is to reforge values at the state and local level while keeping the pathways (e.g., access to contraception) open through national efforts.

SOLOVE: What was your most surprising finding?

CARBONE & CAHN: We were surprised to find that the relationship between age and divorce is new. While teen marriages have always been risky, those who married at 22 in 1980 had about the same levels of divorce as those who married at 28; today, every increase in age reduces the incidence of divorce. This is surprising to us because it suggests that what is going on is not biological, that is, that the improved stability of later marriage is probably a function of better assortative mating (i.e., the successful marry later and marry similarly successful mates) rather than greater maturity at later ages. It also suggests that what’s wrong with marriage in the early twenties is the absence of the right societal support rather than anything about the immaturity per se of those in their early twenties.

Read the rest of this post »

  March 1, 2010 at 6:55 pm   Posted in: Articles and Books, Book Reviews, Bright Ideas, Culture, Family Law, Feminism and Gender, Politics, Psychology and Behavior   Print This Post   4 Comments

Pleased to meet you, won’t you guess my name

posted by Kaimipono D. Wenger

Today’s Wall Street Journal includes an article about the alleged dwindling supply of short-and-punchy band names, which notes:

Between takes in a recording studio, Mr. Jones brainstormed about names with his new band mates, including former Nirvana drummer Dave Grohl, then checked them online. Their first choice, Caligula, turned up at least seven acts named after the decadent Roman emperor, including a defunct techno outfit from Australia. Eventually the rockers decided on Them Crooked Vultures. The words held no special meaning.

“Every other name is taken,” Mr. Jones explains. “Think of a great band name and Google it, and you’ll find a French-Canadian jam band with a MySpace page.” The available supply of punchy one- or two-word band names is dwindling. So, many acts are resorting to the unwieldy or nonsensical.

The article goes on to suggest that in the past, great names like The Beatles were available, but no longer. Today, we are doomed to a future of Them Crooked Vultures. (Or perhaps, to augment the article, Red Jumpsuit Apparatus, or The Airborne Toxic Event).

Except that easily available evidence directly contradicts the conclusion, doesn’t it? The past decade alone has seen the rise of lots of chart toppers: The Killers, The Fray, Pink, 50 Cent, Kid Rock, Evanescence, Nickelback, Train. Train! The landscape is officially not bare if a band called Train can break onto the scene and achieve national success within the past decade. Whatever one thinks of each group’s music, they’re all clear, short, punchy, and memorable names.

It’s true that if someone is stubborn or uncreative enough to insist on a band called Bliss or Rain or Caligula, then they’re out of luck. The relatively short window in which anyone could be The Who is past. But there’s always room for a Led Zeppelin, or a Creedence Clearwater Revival, or — even in this past decade! — a Pink.

Now, I’m going to go listen to The Calling and The Script for a little while, while I sit and Muse.

  February 17, 2010 at 4:47 pm   Posted in: Culture   Print This Post   3 Comments

Still Buzzing, the Under 13 Set

posted by Danielle Citron

Google Buzz thrust itself on the social scene at a particularly auspicious time.  Snow had trapped East Coasters in their homes so kids talked to their friends digitally and watched television (usually at the same time).  Those over 13 likely spent their time on Facebook, which now seems like a privacy haven compared to its newest pesky social network comrade, Google Buzz.  Kids under 13 discovered that Google Buzz hit their Gmail account.  It was, for many, their first social network experience: intoxicating, terrifying, and all theirs.

As many parents know, Facebook and other social network sites welcome anyone 13 and older to make friends and become fans at their site.  That leaves kids under 13 (at least ones with watchful parents) with a less dynamic online life.  Before last week, my kids and their pals communicated via email and Gmail chats, happy to wait until their 13th birthday when they might get a chance to create profiles and network on Facebook (parent approval pending).  Then came the Buzz.  As parents busied themselves shoveling or trying to work, kids found their Gmail inboxes transformed into garden of online delights.  They could post pictures and videos for their contacts (their contacts’ contacts and their contacts’ contacts) to see, and they gained access to everyone’s email list.  Status updates from contacts appeared in an endless stream along with wall-like postings.

Aside from the obvious privacy problems that advocates such as Marc Rotenberg make stunningly clear, see here, another arose, one that has received less press.  Those under 13 had, and may continue to have, a powerful taste of social networking that they may be ill-equipped to handle.  Online communications have a powerful disinhibiting effect.  As a result, people do and say things online that they would never do or say offline.  This is particularly tricky for young children who have much emotional intelligence to learn.  Although I had only a small sample to watch, my friends tell a resoundingly similar story: kids under 13 got swept into a nasty free for all, a melange of bullying, shaming, and privacy-busting disclosures that would make a more emotionally mature crowd cringe.  As the recent story of 15-year old Phoebe Prince’s suicide illustrate and that of Megan Meier, online bullying can escalate into serious harassment, inflicting mental distress so serious as to drive the emotionally vulnerable to suicide.

Google Buzz did parents a favor with its shocking jump into social networking, foisted on Gmail users.  Since the snow storm has abated for the moment, parents are now probably paying attention to what is going on with their kids.  Hopefully, this turns into a crucial teaching moment for families who need to talk about acting responsibly online, to treat others as ends in themselves, worthy of respect, not as objects that we can shame and demean.  I know that our house took that opportunity.  So should yours.

Hat Tip: Citron gang, Tea Carnell, and Ray Cha

  February 16, 2010 at 5:04 am   Posted in: Anonymity, Culture, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Web 2.0   Print This Post   2 Comments

The purpose of copyright law

posted by Viva Moffat

I am always interested in popular (or at least non-academic) conceptions of intellectual property law, and there’s an interesting back-and-forth going on between Matt Yglesias at ThinkProgress and Sonny Bunch on Conventional Folly.  Yglesias posts a graph showing the music industry’s declining sales — from $14.6 billion in 1999 to $6.3 billion in 2009 — and states that the purpose of copyright law is to protect consumers: “It is, of course, possible that at some point the digital music situation will start imperiling the ability of consumers to enjoy music.  The purpose of intellectual property law is to prevent that from happening, and if it does come to pass we’ll need to think seriously about rejiggering things.”  Bunch responds by claiming a very different purpose for copyright law: “The purpose of intellectual property law has very little to do with Matt Yglesias being able to enjoy a wide variety of new music.  The purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts.  The purpose of intellectual property law is to punish people who steal that which isn’t theirs.”   Andrew Sullivan has been tracking this debate (here and here), including reader comments along the way.

Though I think there’s too much bluster on both sides, I’m often impressed at the level of the debate.  I tend more to Yglesias’ view, that copyright is (or ought to be) more about incentive than reward.  What I’d like to see is a chart about the amount of music out there and available to consumers.  What sorts of changes have there been between 1999 and 2009 that are not reflected in music sales (which is more about a particular business model than about the amount of creativity out there)?

  February 5, 2010 at 9:11 am   Posted in: Culture, Intellectual Property   Print This Post   3 Comments

Signing Off (Plus Some Advice for Law School Admissions Committees)

posted by Adam Steinman

In the coming weeks and months, law school admissions committees will be making decisions on the Class of 2013. And they’ll be watching the numbers carefully, trying to make sure their inputs look good in the next U.S. News rankings. If your school needs help with GPA numbers but has some cushion on the LSAT, this star of MTV’s Jersey Shore could be just the ticket. As covered here, here, and here, Vinny Guadagnino boasts a 3.9 undergraduate GPA, although he calls his LSAT score “mediocre.” He says that law school’s “on the back burner,” but maybe now that his stint on the show is over he’ll be willing to entertain offers.

Speaking of stints being over, I wanted to thank Dan, Jaya, and the rest of the Concurring Opinions crew for the opportunity to guest blog here these last few weeks. I’ve really enjoyed it.

  January 29, 2010 at 11:33 am   Posted in: Culture, Law School (Rankings), Movies & Television   Print This Post   No Comments

Law and the Judge’s Cousin

posted by Nate Oman

There is an interesting exchange in the comments of my last post between Dan Cole,Jeff Lipshaw, and Michael Froomkin about institutions and the limits of substantive law. Dan Cole writes:

But substantive law is an intrinsic part of the institutional structure. If the quality of institutions matter, then by definition the quality of laws matter. That is a point made over and over again by Coase, North, Williamson and other economists.

Yes and no. I don’t deny that law plays a role in the quality of the institutions that resolve disputes. I also don’t deny that the overall quality of dispute resolving institutions is effected by the substantive law that the institutions apply. On the other hand, legal institutions are the result of much more than either the legal rules that define their workings or the legal rules that they apply. They are also the result of things like allocation of resources and informal social practices.

I was once at a panel that brought this point home forcefully. It was on comparativecommercial law and that perennial chestnut, which is better the common law or the civil law.  The partisans of the common law were laboring hard to establish the virtues of its flexibility and respect for freedom of contract.   (I’ve labored over these virtues myself on occasion.)  At this point, a long-time commercial practitioner on the panel interjected remarks to this effect:

At the margins, I suppose that the common law is slightly more friendly to commercial innovation than is the civil law. When I go to a civil law jurisdiction I often learn that there are certain transactions I simply can’t run or are more complicated to structure. On the other hand, when I am assessing the economic prospects in any particular country, my main question isn’t “Is this a civil law or a common law jurisdiction?” Rather, my main question is whether or not the fact that the lawyer on the other said is the judge’s cousin will effect the outcome of the case.

That is what I mean when I say that institutions matter more than substantive law.

  January 13, 2010 at 8:37 am   Posted in: Contract Law & Beyond, Culture, Economic Analysis of Law, International & Comparative Law, Jurisprudence   Print This Post   2 Comments

A “Content Loss Ratio” for Cable Companies?

posted by Frank Pasquale

I’ve been following the debate over ala carte cable TV pricing, and the recent Fox/Time Warner showdown has put it back in the news. Brian Stelter’s NYT article on the topic reveals some interesting revenue figures in the cable industry:
Read the rest of this post »

  January 4, 2010 at 7:23 pm   Posted in: Consumer Protection Law, Culture, Cyberlaw, Economic Analysis of Law, Law and Inequality, Media Law, Technology   Print This Post   One Comment

Sherlock Holmes and The Sparks

posted by Deven Desai

Here’s just a little free association for what I hope are ongoing happy holidays for everyone. Sherlock Holmes opens on Christmas Day and is a front runner for holiday films I want to see. I happen to think that Robert Downey Jr. is in a great groove. I loved his acting in Chaplin and am quite pleased to see that his career as bloomed. Whether Guy Ritchie can make this one good remains to be seen. My guess is that like Star Trek some annoying we-have-to-do-it allegedly new action sequences or martial arts inspired skills and fights will make their way into the series. As William Goldman noted, film is a business; idealized versions of a story don’t often work in that arena. So perhaps this potential nonsense is necessary.

As a fan of the original works, I am sure to be disappointed and think that House is a better modern version of Holmes than this film’s idea. But that is the fun of open culture. Folks get to play with types and see what works. Indeed, theorists can track the way in which Holmes is portrayed and examine how a given era sees the character (Check out the difference between Bogart’s 1941 Sam Spade and the earlier, 1931, version to get a sense of how much a character can morph; or think of the ever-changing, yet stable, James Bond. Les Liaisons Dangereuses provides another example. The Marquise de Merteuil is quite different in Dangerous Liaisons and Valmont).

Regardless of my concerns, there is a chance people will discover the original works and enjoy them as well (free at the link). Or maybe the film will introduce you to the Sparks, a band that I happen love for its lyrics which are rather good at poking at society by mixing cultural references into their music. For instance you might enjoy the song Mickey Mouse (I especially enjoy the introduction which discusses the mouse as a general matter but this version has better sound and some fun mashup). The song I Predict may seem too familiar to lawyers and law students with its refrain “Are My Sources Correct?”, but it also refers to transsexuals, Elvis, Lassie, Maxim’s, marketing, and the oddity of prediction in general. Cool Places seems to pick up on theme of society’s obsession with being, well, cool. And after the jump there, you can check out The Sparks and their comment on Sherlock Holmes. Believe it or not, the song is a love song of sorts (the ironic tone makes it hard to be a straight forward ballad). Here is a teaser

“Fog matters to you and me, but it can’t touch Sherlock Holmes
Dogs bark and he knows their breed
And knows where they went last night
Knows their masters too
Oh baby, hold me tight.

Just pretend I’m Sherlock Holmes.”

Who knows? Maybe The Sparks predicted what the film industry hopes happens with the film: millions will want to be (or be with) Sherlock Holmes (but as the song points out, they can’t be).

Read the rest of this post »

  December 24, 2009 at 7:05 am   Posted in: Culture, Humor, Intellectual Property, Just for Fun   Print This Post   One Comment

Book Review: Justin Fox, The Myth of the Rational Market

posted by Lawrence Cunningham

Those interested in the intellectual history of modern finance theory will find Justin Fox’s The Myth of the Rational Market riveting. It is familiar territory to anyone who has written on the subect; Fox, a writer at Time, uses the pop style of financial journalism. Even so, many useful insights appear and the arrangement suggests relationships among ideas worth exploring.  

Notably, this book, which Fox began writing in 2002, is not about the current financial crisis.   But of the dozen about the current crisis I’ve read so far (several reviewed on this blog) it is far more illuminating in relation to it.   Fox demonstrates how the ideas hatched by academic financial economists during the past 45 years, and adopted with alacrity by nearly everyone else, from bankers to law professors to regulators, contributed significantly, though unwittingly, to prevailing woes.  

Fox’s story, using lucid and engaging prose, based on well-documented research and interviews, concentrates on how academic finance departments reshaped our world, not always for the better.  Beyond the book’s scope is a parallel story, yet to be written, about how law professors, applying the finance work, wrought similar change.  Read the rest of this post »

  December 15, 2009 at 11:30 am   Posted in: Book Reviews, Corporate Finance, Culture, Current Events   Print This Post   3 Comments

Are T.V. Programs Killer Apps?

posted by Deven Desai

Networks. In my youth, the term was most familiar to me as the word for large, national television stations. NBC was at the bottom of a small heap in the late 1970s. If I recall correctly, Johnny Carson and the Tonight Show supported most of the network in general. Now remember, there were only three networks and some local stations, yet NBC was unable to do well. Then NBC tried a show that I believe many thought would not work or have little success, The Cosby Show. Who knew? That show took off and NBC parlayed The Cosby Show into 20 years of dominance. Family Ties was OK but nothing brilliant. Nonetheless, with Cosby as the anchor, NBC tested and launched series such as Cheers, Friends, and ER with Wings and other decent fillers in between. In a sense NBC seemed to have cross-subsidized its programming on Thursday and even other nights (by launching and then moving series). In addition, that lead allowed NBC to promote all its other programming. Then came CBS which was in the doldrums and it tried a little thing called Survivor. Boom! CBS took off. Many OK, and some not so good shows have done well on CBS. FOX arguably uses American Idol to achieve similar results. NBC struggles so much that some rather good shows are lost and like the proverbial tree they fall but no one hears them.

The analogy is far from perfect (for one I am not certain that T.V. shows require large numbers to be useful then again they seem to do well in part because one likes to be able to talk about shows around the so-called water cooler), but I wonder if Yahoo!, AOL, Google, MSN, Facebook, and Twitter are in some ways similar to the T.V. networks. One killer app and the site grabs a ton of people who stick and may use other products from the network. Users can click away and can use the services in a simultaneous way in that one can work with one service at time or have multiple services running but not miss programming as was the case before the VCR. There are many open questions in this arena. For one, how easily can one switch from one service to another? In addition, are there similar problems regarding limited access (i.e., T.V. and cable can carry only so many channels but the Internet has greater capacity (though depending on the status of the network not as unlimited as some might argue)? A key issue in my mind is the problem of knowing that a good service or program exists. The Internet appears better than T.V. at letting users quickly decide what they like, and the information seems to spread rather well. Still, I am sure there are great services that I am missing (a recent one that someone mentioned to me was Dropbox). One often doesn’t know what is good until those pesky advertisers and marketers push information. My recent research has been looking into the way trademarks as brands have functioned on several levels, but one thing that jumps out is that brands are two-way information devices. Advertising is a major piece of that puzzle in one direction; the Internet and commentary is a major piece of the puzzle in the other direction (trademark law handles this idea poorly). Ironically, just as T.V. and print cry out because ads are being skipped, the Internet steps in and seems to deliver better returns on ads. The new difference is that in some cases those who pay for and create the content that was subsidized by ads are not seeing that money. In other words, as Paul Duguid has shown in his work and I have found in my research, early brands can be understood as having a big role in supply chains; we may need to think of modern networks in much the same way. There are many details and differences to address in the Internet arena, but I think these ideas will be part of how we sort out some of the online competition issues in play today.

  December 7, 2009 at 2:36 pm   Posted in: Advertising, Culture, Google & Search Engines, Intellectual Property, Trade   Print This Post   One Comment

Alien Languages and Christmas Gifts

posted by Deven Desai

I spent Thanksgiving with my friend John Scalzi. His wife and he bought me a rather nice bottle of Scotch which may have influenced me when I read an advance of his latest novella, The God Engines. (In case you were wondering, the gifts were not consumed at the same time). I am a fan of John’s writing and easily recommend his Old Man’s War series. This most recent effort, however, is quite different, and in my opinion, his best work to date. It is dark, the world is well-developed, and the ideas touch on areas one may prefer to leave alone.

The book also has characters with the apparently requisite extra consonants so that one knows the world is different than ours. I teased and joked with John about this point. In books, the extra letters drive me nuts, because I have no idea how to pronounce the names in my head. Yet alien languages and names seem to be essential to science fiction. Dune, Star Wars, Star Trek, Land of the Lost (the T.V. series), and more strive to insert this type of detail. This weekend the New York Times ran an article about this behavior, and its occurrence in the new Avatar film (which by the way has some striking resemblances to Old Man’s War as far as military science fiction and blue-green creatures go). The article is a fun exploration of how fiction has drawn on linguists to create alien tongues. I am not sure, but I think that at one point there were more people who tried to speak Klingon than there were Esperanto speakers. Fandom may indeed rule culture in the end.

In any event, if you want to get a short but damn fine read for someone or yourself, I suggest John’s new novella. It is available for pre-order at Amazon or you can go to the publisher’s site and buy one of 400 limited signed editions which are leather-bound and have a different cover from the trade paperback. Which reminds me, those interested in product differentiation and price discrimination strategies for culture products may want to study the publisher of the novella, Subterranean. It serves a special part of the book buying world quite well and seems to make money too. Whether a large number of authors could plug into a house like this one and make money without having already established a name is an open question (but I doubt it). Nonetheless, the press is an interesting model.

  December 7, 2009 at 8:52 am   Posted in: Culture, Science Fiction   Print This Post   One Comment

Scientology and the Media

posted by Danielle Citron

Much like everything else in our debt-ridden economy, the media has hit hard times.  Papers have folded, fired staff, or been sold.  This leaves news markets with fewer papers and less investigative reporting.  Amidst this glum report comes another trend worth discussing.  As the mainstream media centralizes its overall presence in a few organizations, some papers left standing have been acquired by organizations with strong religious affiliations.

Consider the Times Publishing Company’s sale of Governing magazine, which reports on state and local governments, to e.Republic, whose founder and top executives are Scientologists.  e.Republic’s founder Dennis McKenna has practiced Scientology for over 30 years and was identified as a church spokesman in 1979.  The Times Publishing Company still owns The St. Petersburg Times, which has long investigated and criticized the Church of Scientology.  In the last several months, The St. Petersburg Times has run a series of scathing articles on the Church of Scientology under the title “The Truth Rundown.”  (In 1980, that newspaper won a Pulitzer Prize for an investigation of the church’s inner workings).

Governing staffers worry that their new management’s religious practices may affect their jobs.  According to The New York Times, their anxiety stems from  2001 article in the Sacramento News and Review reporting that e.Republic’s staff members were required to read a book on management called “Speaking from Experience,” written by L. Ron Hubbard, the founder of Scientology.  e.Republic’s Chief Operating Officer has said, however, that in his 13 years at the company, he had never read Mr. Hubbard’s book.  Some of the staffers’ concerns might be alleviated by the fact that e.Republic has long published Government Technology (GT) magazine, one of my favorite sources for my work on government’s use of information technologies, with no sign that the owner’s religion has had an impact on the stories that GT publishes.  But no matter, this trend is worth watching as newspapers continue their downward spiral.

Wikimedia Commons Image

  November 24, 2009 at 10:01 am   Posted in: Culture, First Amendment, Media Law, Uncategorized   Print This Post   2 Comments

LSD and Health

posted by Deven Desai

Yet again medical science is testing those darn boundaries; this time the drug is LSD. Then again, medicine was considering the ways LSD might have therapeutic value a long time ago. In the 1970s LSD research was banned out of fear that it caused mental illness. As the Guardian reported, “A growing number of people are taking LSD and other psychedelic drugs such as cannabis and ecstasy to help them cope with a variety of conditions including anorexia nervosa, cluster headaches and chronic anxiety attacks.”

The problem we face is that some folks just want the drugs for recreational use. The symptoms and disorders at issue seem difficult to quantify. Is a drug as potent as LSD (“A single dose of LSD may be between 100 and 500 micrograms — an amount roughly equal to one-tenth the mass of a grain of sand. Threshold effects can be felt with as little as 25 micrograms of LSD“) really helping people? Some have been able to use LSD once or twice a year as part of programs to curb alcohol abuse and others have seen success in preventing chronic abuse of other substances. Research at Harvard indicates that cluster headaches and intense pain have been reduced. And researchers at Berkeley are pursuing the way in which LSD affects creativity.

If any if this research is fruitful, it seems to me that the government should be more willing to allow researchers to explore ways to the true benefits of drugs and cope with the social problems as a separate matter.

As a side note, with a Bay Area-Harvard connection emerging, maybe we’ll have another round of Tom Wolfe’s The Electric Kool Aid Acid Test with modern Merry Pranksters and magic buses touring the country. If so, and Wolfe wrote a follow-up to his book, that would be interesting too. In any event, if you have not read the book, do so. It is an excellent bit of writing and a great study of one way to understand the United States of the book’s era.

  November 23, 2009 at 2:23 pm  Tags: drug policy, Electric Kool Aid Acid Test, LSD  Posted in: Culture, Health Law   Print This Post   8 Comments

Must Law Practice and Scholarship be Exciting?

posted by Lawrence Cunningham

Causes of the worldwide credit crisis include, perhaps dominantly, the proliferation of innovative financial contracts, purportedly devices that would reduce financial risk but that instead backfired to concentrate and intensify it on a galactic scale. What role did corporate law culture play in this part of the cause? Was it too exciting? Should it be duller?

Beginning in the late 1980s, when I was in practice, I and other lawyers participated in incubating the market for financial derivatives and securitization transactions. In the beginning, these deals were nowhere near as exciting as the same period’s newly-exciting mergers and acquisitions and finance practices. We would prepare one-off interest rate swap form contracts on a small scale. We would package credit card accounts receivable into pools for sale to investors. But this practice area became increasingly exciting through the 1990s and 2000s as derivatives and securitization deals proliferated and came to form whole departments in law firms, rivaling mergers and acquisitions groups in glamour and revenue.

In the early 1990s, when I entered corporate law teaching, there was much exciting academic work being done, the culmination of what Yale corporate law scholar Roberta Romano heralded as a “revolution” in corporate law scholarship which, in the 1960s and 1970s, at least, had been dull. In that earlier period, the focus, in practice and the academy, was merely on positive, doctrinal law, mostly statutes, and on the old-fashioned duties managers owed to shareholders, often meaning practicing lawyers telling creative clients “no” when innovative ideas would violate longstanding duties. Read the rest of this post »

  November 19, 2009 at 5:57 am   Posted in: Corporate Law, Culture, Law School (Scholarship), Law School (Teaching)   Print This Post   6 Comments

Throwback to 2007

posted by Sarah Waldeck

On the heels of posts about television legal dramas by Jonathan Siegel and Jon Ip, consider The Good Wife, now airing on CBS.  (I haven’t yet watched this week’s episode, so no spoilers here.)  The show is mostly about a wife dealing with the very public revelation that her elected-official husband frequented prostitutes.  This storyline is good and the reason I’m still watching.  But Alicia is an associate at a Chicago law firm and quite a bit of the show takes place there.

I’d been trying to figure out why The Good Wife feels so dated, even though Alicia’s family is a victim of the 24-hour news cycle and her kids are extremely wired.  Then it hit me—the law firm is way too pre-2008.  The associates are given a stern lecture about needing to increase billable hours.  Where’s the angst about the viability of billable hours and the future of the law firm business model?  Moreover, doesn’t the lecture mean that the firm has excess work and is just lacking someone who will step up and do it?  There’s a passing reference to the firm hiring more associates than it will need over the long term, but where are the rescinded offers and the cancelled summer program?   The writers need to start reading Above the Law and borrowing liberally.

Granted, television rarely provides a realistic look at how law firms really work.  (See Ally McBeal.)  I do hope, however, that The Good Wife doesn’t inspire too many would-be law students.  These attorneys are way, way too comfortable.

  October 14, 2009 at 8:05 pm   Posted in: Culture   Print This Post   2 Comments

The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

posted by Spencer Waller

By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

  October 6, 2009 at 9:55 am  Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics  Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court   Print This Post   One Comment

Umpires Don’t Make Law, Players Do.

posted by Dave Hoffman

Via Deadspin comes this great video of Joe Mauer, apparently reading the catcher’s signs and relaying them to batter Jason Kubel.

Putting aside Mauer’s denial, the interesting thing about this is whether it’s actually wrong to steal signs. There’s no rule against it, and so the answer is: it depends on the players’ perceptions of the situation. If you run afoul of the norm (i.e., a batter looking behind him) then you are likely to face informal sanctions in the form of a baseball to the body. Mauer’s sign-stealing, by contrast, seems acceptable: (1) it was a crucial game; and (2) the Tigers didn’t protect their signs despite knowing a man was on second. But it isn’t so acceptable that he can admit it publicly. That is: Mauer’s sign stealing was at once lawful, permitted in the social context, and publicly wrongful.

(H/T: Reader CDP. For more on the history of sign-stealing in baseball, check out The Echoing Green: The Untold Story of Bobby Thomson, Ralph Branca and the Shot Heard Round the World)

  October 2, 2009 at 8:49 am   Posted in: Criminal Law, Culture, Current Events, Sociology of Law   Print This Post   6 Comments

Hidden Culprit in Financial Crisis

posted by Lawrence Cunningham

The Financial Crisis Inquiry Commission, created by the Fraud Enforcement and Recovery Act (May 20, 2009), held its first public meeting today, launching its mandate to examine causes of the financial crisis. The statute enumerates 22 possible culprits, all now usual suspects, like executive compensation, bad regulatory oversight, financial derivatives, complex securitization schemes and the like. Also on the list is the general notion of bad lending practices at banks, which two Commissioners today likewise noted in general terms.

Not on the list, and not mentioned today, or much discussed in the cacophonous litany, are the credit scoring systems lenders use to make first and sometimes final cuts on loan decisions. The credit scores lenders used before the crisis are still used today. But they do not measure credit-worthiness, or probability of loan repayment, as much as they measure whether applicants are good customers of banks, compared to those less reliant on banks. They value debt, and over-leverage is a recurring culprit in all financial crises.

To illustrate, take a pop quiz. Suppose the following two people apply for a mortgage loan on a home in suburban Maryland (say for $500,000). (1) Which is more credit worthy? (2) Which is more likely to be approved? (3) Would the answers differ if the decision were made today, after the financial crisis, or two years ago, before that?

Applicant A is a tenured Professor of Medicine at Johns Hopkins University, with a mid-6 figure base salary, doubled by significant practice income, revenue on patents she shares with the University, and rental income from resort properties she inherited from an aunt years ago that are owned free and clear of any liens or loans. The Doctor has no outstanding debt, a net worth in the low seven figures and has bought and sold two previous homes, paying off related mortgages before their maturity date.

Applicant B is a local real estate developer, with a low-6 figure income, ¼ of which is in contingent bonus compensation, and no other source of income. His net worth consists mainly of a modest retirement account, stock options and grants from his employer, and some cash in the bank, about enough to make the down-payment contemplated by the mortgage loan application. He has several lines of credit outstanding, all with meaningful balances, that he has increased regularly for years, though always paying monthly minimum balances when due. Read the rest of this post »

  September 17, 2009 at 4:58 pm   Posted in: Culture, Current Events   Print This Post   6 Comments

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