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 [...]]]> 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.

Beginning in the 1980s, the focus in both turned to innovative deals, especially highly-leveraged hostile takeovers and what courts should do about them. Scholarship studied market behavior, looking empirically at deal effects on stock prices, how quickly and accurately information was absorbed into stock prices, how to measure investment risk and value. Important strands of this scholarship, and resulting law, urged facilitating these debt-financed deals.

In practice and scholarship, intensifying through the 1980s and into the 1990s, transactional and financial innovation was the rage. Corporate lawyers turned innovative, cutting edge, exciting, doing deals, developing new contractual devices for financial products—including those I worked on. Corporate law scholars took up finance theory with alacrity, doing exciting research showing how this innovation worked, with many producers and devotees of this work arguing how law should give it maximal space to flourish (though there were dissenters from this dominant view, including me).

As recently as 2005, Professor Romano, a leading scholar in this dominant style, urged doing more of it, more innovative financial engineering in practice and more finance oriented and exciting research in the academy. Professor Romano urged law schools to develop programs in law and finance to assist promoting this excitement, in practice and research, reporting how her school created a degree program in law and finance to seal the exciting links between law and finance and between cutting-edge law practice and legal scholarship.

Earlier this year, on a corporate law panel at the annual meeting of the Association of American Law Schools, though, Professor Romano said the program had attracted little interest among students. As Matt Bodie reports, panel discussion included talk of how the exciting finance models had failed and yet how problematic it is to design corporate law absent reliable empirical information. Professor Bodie wisely wondered whether these facts and lamentations spelled the end of the “revolution” in corporate law—a “post-post-revolution” period.

That makes me wonder, is it an inherent virtue for corporate law practice and scholarship to be exciting, or is being dull okay? Would the world be better off if more participants in corporate life were as dull as corporate lawyers used to be? Is it okay to tell clients “no, you can’t do that,” or, as I recall one stodgy old Cravath lawyer tell a client back in the late 1980s, “you can do that, but be prepared to go to jail”?

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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)

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 [...]]]> 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.

(1) A, the Doctor, is by far the more creditworthy of the two.

(2) B, the real estate developer, will have a much higher credit score.

(3) No, under the so-called Desktop Underwriting software that lenders use, before crisis and now (hawked as enabling these decisions to be “made in less than 15 minutes”), B gets a far higher credit score than A. B passes lender underwriting cut-offs; A does not.

Why? Credit scores increase when people have large amounts of debt and decrease when they do not have large amounts of debt. Credit scores are unaffected by factors like employment security, equity net worth, or income. True, after credit score screening, banks may apply an additional test to borrowers with good credit scores, to assure requisite ratios of income to debt payment obligations. But the credit scores bias even that evaluation and still overlook significant factors. They essentially foreclose the possibility of making loans highly likely to be repaid.

In short, credit scores do not reflect people’s probability of repaying loans (whether they are creditworthy) but whether someone is a good customer of the banking system. Contributing to the crisis, banks made mortgage loans to millions of people with wonderful credit scores who lacked creditworthiness. They avoided lending to people with bad credit scores and strong credit quality. The practice continues. The Commission should put credit scoring on its list of possible causes of the financial crisis.

My nudge reacted against an idiomatic fashion to begin sentences with “So,” in speech and writing, especially on blogs (including by esteemed contributors to this one). Aside from proponents of expressive clarity considering so a useless word when beginning a sentence, it may be improper English.

Exceptions recognize utility in narrow contexts, such as for poetry (“So lovely was the lavender lilac”), impression (“So these colonies stood strong”) or in rousing speeches (“So I say to my family and friends”) and in the familiar “So what?”

Current usage expands well beyond the exceptions. The [...]]]> Last week, Dave Hoffman posted about omitting needless words in exposition. In comments, I satirized his point, leading off with “So, . . .” and included dozens of other habitually-used words or phrases likewise lacking meaning.

My nudge reacted against an idiomatic fashion to begin sentences with “So,” in speech and writing, especially on blogs (including by esteemed contributors to this one). Aside from proponents of expressive clarity considering so a useless word when beginning a sentence, it may be improper English.

Exceptions recognize utility in narrow contexts, such as for poetry (“So lovely was the lavender lilac”), impression (“So these colonies stood strong”) or in rousing speeches (“So I say to my family and friends”) and in the familiar “So what?”

Current usage expands well beyond the exceptions. The word begins sentences like: “So, I read yesterday;” “So an interesting thread appears over at . . .;” and “So, the Supreme Court has decided . . . .” (No convention seems to have formed about whether a comma follows the word when it starts a sentence.)

Shall law professors or other academics encourage students to begin sentences with “So” in class discussion and research papers?    Do lawyers or judges appreciate that lead off? Is it appealing to readers of the English language in general? I doubt it.

I am convinced it is not good for professors to follow the idiomatic fashion. A few years ago, my law school interviewed an entry-level candidate who began sentences with “So” often. Many colleagues cited the annoyance as a negative. They tried to suppress the habit’s significance when evaluating the overall record, recognizing the idiomatic fashion, but it hurt the candidate. We did not extend an offer.

I cannot recall ever writing a sentence beginning with the word So in this usage, and hope I never do. I confess to using it in conversation on too many occasions, capitulating to fashion, yet wish I had not and hope to cut back.  It would help if everyone else cut it out too.

If people don’t like something, the solution is often as simple as a name change.  Consider fish.  Some of the most popular fish today are renamed versions of less desirable fish.  Orange Roughy used to be called slimehead.  Chilean sea bass used to be called toothfish.  Monkfish used to be goosefish. The result of these name changes has been a dramatic increase in popularity, so much so that many renamed fish are now overfished and endangered.

The renaming trend is now spreading to academic courses. From the Boston Globe:

Boston College German studies professor Michael Resler went searching for a way to boost flagging interest in his “German Literature of the High Middle Ages’’ class a few years ago, and settled on the [...]]]>

Chilean sea bass

If people don’t like something, the solution is often as simple as a name change.  Consider fish.  Some of the most popular fish today are renamed versions of less desirable fish.  Orange Roughy used to be called slimehead.  Chilean sea bass used to be called toothfish.  Monkfish used to be goosefish. The result of these name changes has been a dramatic increase in popularity, so much so that many renamed fish are now overfished and endangered.

The renaming trend is now spreading to academic courses. From the Boston Globe:

Boston College German studies professor Michael Resler went searching for a way to boost flagging interest in his “German Literature of the High Middle Ages’’ class a few years ago, and settled on the idea of simply giving the course a sexier name. The resulting “Knights, Castles, and Dragons’’ nearly tripled enrollment.

Resler then replaced his class on “The Songs of Walter von der Vogelweide,’’ a great German lyric poet, with “Passion, Politics, and Poetry in the Middle Ages.’’ Again, enrollment swelled.

“I suppose the moral of the story is that we live in an age where everything has to be marketed in order to find a willing audience,’’ Resler mused.

Maybe it’s time to rename law school classes:

Torts –> Crashes and Accidents

Criminal Law –> Murder Most Foul and Other Dastardly Crimes

Trusts & Estates –> Dead Hands: Power After Death

Corporate Law –> Gold and Parachutes

Property –> The Story of a Whale and a Fox

Hat tip: Inside Higher Ed

Last September, the NFL suspended Kevin Williams and Pat Williams of the Minnesota Vikings for four games each after they failed drug tests. The two star defensive tackles, who together comprise Minnesota’s “Williams Wall,” tested [...]]]> My colleague Joanna Shepherd and I are working on a project analyzing judicial voting on election law cases in state court. Although there is a sophisticated literature about judicial politics and political influences on judges, there actually is little quantitative work looking at political influences on judges in explicitly political cases, such as election contests, redistricting, and ballot access questions. Thinking generally about judicial politics for this project gives me a different perspective on the state court review of the NFL suspensions of two players from the Minnesota Vikings.

Last September, the NFL suspended Kevin Williams and Pat Williams of the Minnesota Vikings for four games each after they failed drug tests. The two star defensive tackles, who together comprise Minnesota’s “Williams Wall,” tested positive for bumetanide, a prescription diuretic banned under the NFL collective bargaining agreement as a masking agent for steroids. After exhausting the appeals process with the NFL, the two Williams’ and the NFL Players Association challenged the suspensions in Minnesota state court.

Here’s the judicial politics angle: The Minnesota district court that heard the Williams’ claims issued a temporary restraining order last December immediately after the Williams’ final internal appeals with the NFL were rejected. The TRO postponed any suspension until the end of the 2008 season, which kept both Williams’ on the field and helped ensure Minnesota a playoff spot last year. The NFL removed the case to federal court, which then dismissed all but two state law claims and remanded those two claims back to state court. This summer, on remand, the Minnesota district court issued another TRO, blocking the NFL from enforcing its suspensions of the Williams’ until after the upcoming 2009 season. I don’t know enough about Minnesota labor law, the NFL collective bargaining agreement, or the relevant preemption issues to assess the state court TROs that helped both Williams’ postpone their suspensions for almost two full seasons, but one commentator who considered these issues noted that even the issuing judge expressed doubts about the likelihood that the Williams’ claims would prevail on the merits, and at least one Vikings blogger suspected a home-court advantage for the Williams’ on their legal claims.

Of course, I have no real idea whether the Minnesota judge in this case was consciously or subconsciously affected by the possible political consequences of denying the TROs. I have little reason to doubt the integrity of this judge in particular, who I assume has nothing but the best intentions. But it might be reasonable to wonder whether a state judge in his position, who must run for re-election to keep his job, could be influenced by the prospect of hometown football fans unhappy that a judge has effectively sidelined their star players for a quarter of a season. My colleague Joanna Shepherd concludes from her research that state judges are routinely re-elected unless they risk doing something controversial and attract negative publicity. Whether or not this particular judge was consciously affected by the possibility, there’s no doubt that denying the latest TRO and putting Kevin and Pat Williams on the sideline for the beginning of the season, right after the Vikings stirred up fan excitement by signing Brett Favre as their new quarterback, would’ve attracted lots of negative attention. If nothing else, this case offers fed courts professors a very salient example for discussing the risk of a home-court advantage in state court and a foreign defendant’s interest in removal to federal court.

Thinking along the same lines, Gregg Easterbrook, an astute NFL commentator (and brother of Frank), suggested that former NFL wide receiver Plaxico Burress might have fared better in his recent gun possession case, if he had rallied local football support to his side by re-signing with the New York Giants immediately before trial. As Easterbrook put it, “Had Burress remained a Giant, he would have had the most popular organization between Washington and Boston in his corner, and it’s simply human nature that prosecutors and judges might have looked sympathetically upon his case.” Instead, Burress received two years in prison for violating New York’s gun permit law. Football matters intensely to many people, which surely has political consequences. One study finds that public universities with Division I-A football programs receive about six percent more in state appropriations than public universities without football programs, and for those football universities, a victory over an in-state rival is correlated with an additional increase in appropriations the following year. Maybe football shouldn’t matter so much to courts and legislatures, but it seems that sometimes it really does.

First, the science.  Clinical trials in Africa have found that circumcision reduces a heterosexual man’s risk of contracting HIV from an infected female by up to 60 percent.  It is unclear whether circumcision reduces the risk that a woman will contract HIV from an infected male and “little [...]]]> Both The Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP) are considering whether to recommend routine infant male circumcision as a means of reducing the spread of HIV.  For me, the debate is a reminder of how the medical practice is deeply intertwined with societal norms.   One example illustrates the point:  American-born parents would dismiss as ridiculous (or worse) the suggestion that they cut off part of their infant daughter’s clitoris to help prevent HIV.

First, the science.  Clinical trials in Africa have found that circumcision reduces a heterosexual man’s risk of contracting HIV from an infected female by up to 60 percent.  It is unclear whether circumcision reduces the risk that a woman will contract HIV from an infected male and “little to no evidence” that it reduces the spread of HIV between homosexual male partners.  But if circumcision reduces the overall prevalence of HIV among heterosexual males, that might ultimately lower the risk among other populations, particularly women.   As for why circumcision status matters, most likely the foreskin tissue is more susceptible to HIV than other parts of the penis.   (You can read more about the science here.)

Circumcision opponents argue that at most circumcision reduces risk.   It does not prevent infection and no-one would suggest that circumcised males do not need condoms.    They further argue that HIV spread patterns are different in the United States than in the parts of Africa where the studies were conducted; that American and African health systems are worlds apart; and that  homosexual males are the individuals most at risk in the United States.   They can also point to studies which challenge or contradict the finding that circumcision reduces the risk of a heterosexual male contracting HIV from an infected female.  At present, however, opponents of circumcision appear to be losing the medical battle. 

All of this must be terribly frustrating for those who advocate non-circumcision.   First, they are well aware of the American medical establishment’s history of promoting circumcision as a means of combating a variety of conditions (my own favorites are the Victorian examples of bowleggedness and masturbation).   Second, in recent decades circumcision opponents have achieved some  partial victories.  The current AAP recommendations are neutral on the question whether to  circumcise infant males .  The national circumcision rate has fallen to less than 65 percent from a high of more than 80 percent, with rates far below 50 percent in a few Western states.   The cumulative result of many different policies that have the effect of discouraging circumcision—most notably, the refusal of many insurance companies to pay for the procedure—meant that non-circumcision may have been creeping, slowly, toward a tipping point.  Indeed, this post originally had a sentence about how a woman of my demographic (white, Midwestern) was statistically unlikely to ever have seen an uncircumcised penis.  But then I realized that I have seen some in recent years, in the locker room at my gym where many mothers dress their young sons.   

The conundrum for advocates of  non-circumcision is that it is possible to acknowledge that circumcision reduces the risk of  HIV infection, but still argue that the procedure should not be routinely performed on all infants.  But this argument is a non-starter unless the listener is really willing to consider that infant circumcision is painful and traumatic, that it changes the male sexual experience, and that there is always a chance, however remote, that the physician will botch the procedure.   In a country where more than 60 percent of infant males are still routinely circumcised, our inclination is to dismiss these arguments.  If legitimate, then what have we been doing to our children?

As I have written about elsewhere, parents who are deciding whether to circumcise care more about the social aspects of the practice than about its medical effects.   The circumcision status of other males in the infant’s family matters a lot to American parents, as does whether boys in a locker room are likely to see circumcised or uncircumcised penises.   Circumcision opponents should be fearful of what the CDC and AAP is likely to recommend, but not simply because these organizations may promote circumcision.  Rather, the medical recommendation will reinforce the still-prevailing societal norm.  Some parents who are conflicted about the practice will ultimately decide to circumcise their boys  because of the medical recommendation alone.   But more are likely to consider the recommendation and predict that other parents will circumcise and thus that they should as well, lest their child be the odd man out.   Meanwhile, parents who were inclined to circumcise will be even more steadfast about the medical correctness of their decision.  All of this makes it extremely unlikely that the norm will tip in favor of non-circumcision.

During the MACO conference, a gubernatorial staffer posted 115 party pics on Facebook, documenting the Governor, Mayor, county executives, and staffers having drinks during the event.  It took little time for the pictures to leak: they now reside on the blog Maryland Politics Watch despite the staffer’s delection of the pictures from his Facebook page.

Why would the staffer post the party pics given the Governor’s admonition for a [...]]]> Every summer, the Maryland Association of Counties (MACO) sponsors a networking bonanza where pols solidify contacts over drinks.  With the budget disaster, Maryland Governor Martin O’Malley promised a “sober” MACO outing.  Surely, partying on the state’s dime would seem in poor taste given the state’s continued layoffs and furloughs.  Well, that was the plan, at least in theory.

During the MACO conference, a gubernatorial staffer posted 115 party pics on Facebook, documenting the Governor, Mayor, county executives, and staffers having drinks during the event.  It took little time for the pictures to leak: they now reside on the blog Maryland Politics Watch despite the staffer’s delection of the pictures from his Facebook page.

Why would the staffer post the party pics given the Governor’s admonition for a sober event and given the dour economic outlook in the state?  Guest blogger James Grimmelmann’s important “Saving Facebook” article, just published in the Iowa Law Review, explains why.  Social network site users have a powerful sense of privacy.  Facebook’s design produces the sense that users engage in private conversations.  Users see their friends’ pictures and names when they send messages and post wall missives, pictures, and videos.  They sense that users are “just like them” and thus would be unlikely to betray them.  We also trust others because double nuclear annihilation lurks.  If we publicize our friends’ pictures and videos beyond the Facebook walls, we can expect the same in turn.  As Grimmelmann convincingly develops, social network site users cannot appreciate the real privacy risks of sharing on Facebook: we are cognitively limited in that way.  Grimmelmann’s piece develops a strategy for addressing these issues and is a must read.

Sometime in the past few days, just in time for the President’s birthday, posters of Obama in Joker-style makeup appeared on a Los Angeles overpass. The images quickly spread across the internet and have sparked predictable praise from the right or criticism from the left. Whether or not the posters are unduly offensive to President Obama, they are a serious insult to Heath Ledger’s Joker and his gleeful nihilism. What strikes and fascinates me is the poster’s angry incoherence: under the image of Obama is the word “socialism.” Did this artist even see The Dark Knight? Or perhaps I should ask, what does this artist think socialism is, anyway?

Consider that socialism is associated with the [...]]]>

Sometime in the past few days, just in time for the President’s birthday, posters of Obama in Joker-style makeup appeared on a Los Angeles overpass. The images quickly spread across the internet and have sparked predictable praise from the right or criticism from the left. Whether or not the posters are unduly offensive to President Obama, they are a serious insult to Heath Ledger’s Joker and his gleeful nihilism. What strikes and fascinates me is the poster’s angry incoherence: under the image of Obama is the word “socialism.” Did this artist even see The Dark Knight? Or perhaps I should ask, what does this artist think socialism is, anyway?

Consider that socialism is associated with the concepts of “central planning” or a “planned economy,” in which a centralized authority manages everything (or at least the economy) according to plan. Now, thanks to a conversation with Brooklyn Law prof Nelson Tebbe, who offered a profound analysis of The Dark Knight, I watched that film with the close attention of a serious academic, ready to learn what it could teach me about violence. I even read the script. And the Joker’s worldview seems pretty antithetical to socialism. Here’s what the Joker has to say about planning:

Do I really look like a guy with a plan, Harvey? I don’t have a plan… The mob has plans, the cops have plans. You know what I am, Harvey? I’m a dog chasing cars… I wouldn’t know what to do with one if I caught it… I hate plans. Yours, theirs, everyone’s… Schemers trying to control their worlds. I’m not a schemer, I show the schemers how pathetic their attempts to control things really are.

If the Joker were an economist, wouldn’t he be a free-market guy?

Of course, coherence is no prerequisite for First Amendment protection, and I disagree with commentators who question the artist’s right to compare the President to a crazed movie character. These posters remind me a little of an incident I discussed here on Concurring Opinions a few years ago – a high school student’s suspension for displaying a banner that read “Bong Hits for Jesus.” As I said then, it’s not entirely clear what “Bong Hits for Jesus” means. It seems vaguely pro-marijuana, and perhaps disrespectful to Jesus, but at best it only gestures at ideas. These Obama posters do the same, and I think I get their message: “Obama is evil, and socialist, and I have no clue what socialism is, but I know it’s evil, like Obama.” Sounds like protected speech to me.

Many thanks to Dan Solove and his co-bloggers for the invitation to join them this month.

To prepare for a trip to Harry Potter: The Exhibition (now at Chicago’s Museum of Science and Industry), my daughter and I had a Harry Potter movie marathon.   It left me wondering:  if newspapers really do die, how are filmmakers going to quickly summarize events and move on to the next part of the plot?   Those images of the Daily Prophet would lose all their punch if they were scrolling across a computer.  Kind of like what would have happened to Raiders of the Lost Ark if Spielberg had to use MapQuest to show us where Indy was heading next .  . .  .

Not surprisingly, the French Constitutional Council struck down the provision of the law that would cut off Internet access to repeated copyright offenders, finding it incompatible with the French Constitution and [...]]]> French President Nicolas Sarkozy recently noted that the Internet is not a lawless zone.  On that, many of us agree.  But then he went a step too far, trumpeting a law that would cut off Internet access to people who repeatedly download copyrighted content  illegally.  The law would have set up a “three-strike” system in which music labels and movie studios would monitor file-sharing web sites to identify computers that have illegally downloaded copyrighted content and then report suspected pirates to a government committee, which in turn would review cases and require ISPs to identify offenders.   

Not surprisingly, the French Constitutional Council struck down the provision of the law that would cut off Internet access to repeated copyright offenders, finding it incompatible with the French Constitution and its due process protections.  The Council ruled that the law will be enacted without the “three-strike” component.  Instead, the government agency can only send out mail and email warnings to suspected pirates.  If the agency wants to further sanction a suspected pirate, it would have to go to court. 

The decision appears to be a narrow one, leaving open the possibility of Internet banning upon judicial review.  On the one hand, this is a wise move given the likelihood that a computer’s involvement in mischief was truly the doings of a neighbor using its wireless router.  Judicial review would address that scenario.  On the other hand, it leaves open the troubling possibility of banning Internet use due to copyright violations.  The protection of artistic creation can surely be accomplished by less extreme measures, i.e., ones that do not cut off a copyright offender’s exercise of basic freedoms in this networked age, from her right to express ideas, create artistic content, associate with religious groups, and make a living.

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Aside from the celebrity context, we may see other misuses of Twitter feeds.  Governments increasingly use Twitter to alert the public about car accidents, fires, crime reports, and public health emergencies.  [...]]]> Individuals increasingly use social networking tools to commit fraud.  Philadelphia Eagles player Asante Samuel discovered his Twitter imposter after the Philadelphia Daily News attributed to him comments from his doppleganger’s Twitter feed.  Keith Olbermann was a victim of Twitter impersonation as was Tony La Russa, manager of the St. Louis Cardinals.  Temple professor Susan Jacobson predicts that much like the early days of the Internet when individuals bought the domain names of celebrities to sell it to those notables for a tidy profit, we will likely see variations of such mischief on social networking sites.

Aside from the celebrity context, we may see other misuses of Twitter feeds.  Governments increasingly use Twitter to alert the public about car accidents, fires, crime reports, and public health emergencies.  A tweet about a fabricated fire or car accident could cause dangerous traffic jams and needless panic.  Someone could impersonate a police department, sending tweets about crimes never committed.  This teaches us to be circumspect about all of those Twitter updates.

H/T to Jim Stanton for his blog posting, “Social Media Fraud On the Increase.”

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1.  Where did Google’s “PageRank” algorithm get its name?

2. Where did Google get its name from?

3. Where did Yahoo get its name from?

[answers below the fold]

1. Although many assume that PageRank refers to the rank of web pages, it is actually named after Larry Page, its designer, according to Janet Lowe, the author of “Google Speaks”.

2.  The original name for Google was “googol” – the mathematical term for the number 1 followed by [...]]]> Again, I’m writing about trivia while there are important things going on in the world (eg Supreme Court nominations as Gerard previously noted).  However, while reading “Google Speaks“, I’ve picked up some search engine trivia that people might like to test their knowledge on.  How many of the following questions can you answer?

1.  Where did Google’s “PageRank” algorithm get its name?

2. Where did Google get its name from?

3. Where did Yahoo get its name from?

[answers below the fold]

1. Although many assume that PageRank refers to the rank of web pages, it is actually named after Larry Page, its designer, according to Janet Lowe, the author of “Google Speaks”.

2.  The original name for Google was “googol” – the mathematical term for the number 1 followed by one hundred zeroes.  Along the way, someone misspelled googol and it was replaced with the current “Google”.

3.  Yahoo is an acronym for “Yet Another Hierarchical Officious Oracle”.