Category: General Law


Cheaters Here, Cheaters There, Cheaters Everywhere?

aceupthesleeve2.JPGDave’s post about New England Patriot’s head coach, Bill Belichick, being fined for apparently cheating points to a larger question. What does it take to stop cheating? Sure Bellichick has offered the obligatory apology saying how it’s his responsibility, and he made mistakes. He also said “As the commissioner acknowledged, our use of sideline video had no impact on the outcome of last week’s game. We have never used sideline video to obtain a competitive advantage while the game was in progress.” Ah contrition or is that no harm, no foul?

In Formula One racing the fine is much larger. The McLaren racing team must pay $100 million for spying and loses all its team points for the construction title; the drivers are allowed to keep their points and are eligible to win the driver’s title. On a related note, remember James Frey? He had a moving, personal memoir about his struggle with drugs and his wild days called A Million Little Pieces. No. Wait. That was a crock. No matter. Frey now has a new novel coming out. Oh and what about the book that forced the publisher to refund duped readers’ money? It sells around a thousand copies a week.

So where does cheating get punished? The cases above seem to agree with Yahoo columnist Dan Wetzel’s view that “Cheating is everywhere” in sports and that fans really don’t care about cheating. Instead he offers they “want victories and nothing else.” He sums up “Nobody cares. Nothing matters. If you’re not cheating, you’re not trying. Just win, baby.” Wetzel seems a bit overboard, but not too much. More worrisome is the possibility that society really has changed its view of cheating. Sure if one gets caught red-handed, the knee-jerk reaction is talk show emulating outrage and narcissistic assertions regarding how it affected and hurt you. False contrition ensues and allows everyone to feel better. Soon the cheater is redeemed, perhaps even embraced. A true confession and repentance is a powerful phenomenon. The slaps on the wrist and farces of today fall well short of that. Whether the law and the lack of accountability reflect or feed the view that one should win at all costs is a matter for another time, but I do wonder.


Some More Thoughts on the NSL Gag Order Case and the First Amendment

There’s been a lively debate brewing in the comments section of my post on yesterday’s National Security Letters decision in Doe v. Gonzalez, in which a federal judge in the SDNY struck down a provision of the Patriot Act allowing the FBI to impose gag orders on recipients of NSLs. In light of this discussion, I wanted to say a few more words about how First Amendment values are threatened by NSLs.

NSLs raise First Amendment issues on at least two different levels. On the surface is the level adjudicated yesterday – the issue of when the FBI can determine that its requests for information about others can be made secret such that the recipient of the request cannot disclose this fact. As Jack Balkin argues (persuasively, in my view) the district court in Doe correctly struck down what was a licensing scheme that rested on the discretion of the government. This is a straightforward application of Freedman v. Maryland, 380 U.S. 51 (1965), which requires that due to the risks of censorship, government cannot require a license to speak except when it follows rigorous procedural safeguards. Freedman involved the licensing of allegedly obscene movies, whereas this case involves speech about the fact of government use of secret surveillance powers. There is, of course, a substantial (yet also vague) government interest in national security on the other side here, but the fact remains that whereas Freedman involved speech that the government had the power to regulate because it was potentially outside the protection of the First Amendment, the NSL gag order provisions involve core political speech. Our best guide for how that balance should be struck in the prior restraint context, the Pentagon Papers case, 403 U.S. 713 (1971), comes down squarely on the side of free speech. So at the level of First Amendment doctrine on the gag order provision, I think the decision in Doe is correct.

My post (and my research interest in this issue) is not about this surface threat to First Amendment values. It is instead about a deeper and ultimately more important level at which NSLs and other government tools of secret surveillance threaten First Amendment values. Even if we subject the NSL gag orders to meaningful judicial review as the Doe court insisted we do, the right to speak about the surveillance rests if at all on the third party who was served with the NSL. Unless that party is both able to speak up and actually does speak up, the real target of the surveillance is unaware that the government is scrutinizing them. So even after yesterday’s decision, NSLs still allow the government to engage in widespread secret surveillance. Yesterday’s decision did nothing to change the fact that NSLs can be used to scrutinize a person’s intellectual activities, including potentially the people they call, the web sites they visit, and even the terms they enter into a search engine. Because many of us use computers and the Internet to engage in the critical First Amendment activities of reading, thinking, and imagining, the fear that the government could be watching or could easily gain access to computerized records that document our engaging in these activities could easily chill our thoughts and incite them to the boring and the mainstream. In a society which values free thought and free speech as essential tools in the search for truth and self-governance, and which relies on novel, controversial or even deviant ideas as a source of progress, we should be (to paraphrase Holmes) eternally vigilant against government attempts to interfere with these fundamental activities. NSLs (among other modern phenomena) are a threat to the intellectual privacy that nurtures and protects these activities from surveillance and interference, allowing new ideas to develop sheltered from the normalizing gaze of others. Although we often think of the First Amendment and privacy as being in conflict, this is an area of law where First Amendment values and privacy values are not just harmonious, but essentially so.

Yesterday’s decision is a small victory for First Amendment law and a small victory for civil liberties. But the larger First Amendment issues that NSLs raise, which were dismissed by the Sixth Circuit earlier this summer as nonjusticiable, remain unresolved, with our ability to engage in autonomous thought on the Internet resting in the balance.


Deterring Protesters

seal-presidential-color.gifMany have complained that President Bush shields himself from opposing viewpoints and that the Administration, in a more general sense, does not tolerate dissent. Thus far, much of the evidence supporting this claim has either been anecdotal or, some might argue, the product of partisan griping.

A Texas couple recently settled (for $80,000) a lawsuit against the Bush Administration over being tossed from a Fourth of July speech by President Bush. The plaintiffs were ejected for wearing “anti-Bush” t-shirts. As a result of the lawsuit, some evidence came to light that demonstrates the Administration’s aversion to dissent is a matter of official policy. The Office of Presidential Advance produced a “Presidential Advance Manual” (dated October, 2002) that instructs presidential advance staffers in the art of “deterring potential protesters” from attending President Bush’s public appearances. Pre-event measures to “minimize demonstrators” include limiting attendance to those with tickets and screening attendees for hidden protest signs (no “homemade” signs are allowed). If, despite these measures, protesters attend an event the manual instructs staff to ask local police “to designate a protest area where demonstrators can be placed, preferably not in the view of the event site or motorcade route.” If for some reason that is not a workable solution to the problem of potential protesters, the manual suggests the strategic use of “rally squads” to shout them down. Ultimately, if all else fails, the manual instructs that protesters should be thrown out of the event (although staffers are instructed not to fall into the “trap” of physical confrontation, which “most often” is desired by protesters).

Presidential appearances obviously raise substantial safety concerns. There is even, at least on private property, an argument in favor of allowing a campaign or administration to exclude protesters and dissenters (although this obviously distorts the marketplace of ideas and inhibits self-government). The Presidential Advance Manual does not generally address safety concerns. Nor does it distinguish between events on private and public properties. The White House has refused so far to discuss the manual – on the ground that it is at issue in two other lawsuits filed by similarly displaced protesters. The document speaks for itself. It is, simply put, a playbook for deterring public protest.


A Fellow of Infinite Jest? Platinum and Diamond Skull Sells for ₤50 Million


Alas, poor Yorick! I knew him, Horatio: a fellow of infinite jest, of most excellent fancy: he hath borne me on his back a thousand times; and now, how abhorred in my imagination it is! my gorge rims at it.

An artist has taken the skull of a man who died in the 1700s, made a platinum cast, kept the original teeth, and encrusted it with “8,601 near-flawless pave-set diamonds, including a large pink diamond worth more than £4m in the centre of its forehead.” The Financial Times reports that a group of investors that includes the artist has bought the skull so they can put it on tour and then sell it at a later date. The event almost makes Helmsley’s trust for her dog seem like a commonplace and reasonable act.

The claim is that the piece, “For the Love of God” symbolizes “the maximum celebration you could make against death”. Mr. Hirst has also said it is the “the ultimate victory over death, the most you could get from decoration, because our society loves money and wealth”. Infinite jest indeed.

The only pictures of the skull I could find are Getty Images and I think restricted. You can see it here. Besides I think Hamlet’s nod to his dead friend would be less compelling if it were a shiny, enhanced version of his skull. Having just seen an excellent production of the play here in San Diego (and I recommend the Old Globe summer Shakespeare performances should you be in San Diego during their season), I’ll take the older artist’s view that money and wealth seem to have little to do with victory over death. Last I heard, death and taxes are still inevitable. Which is not to say people won’t try to avoid both, but really it seems to be a rather quixotic quest.


Paternalism and Compulsory Attendance

perfectattendence.gifShould professors force law students to come to class?

It’s a species of the pedagogy/paternalism debate that has otherwise been batted around in the banning laptops and mandating preparation kerfuffles. And yet, requiring attendance is different. It is much harder to see how missing class, unlike using a laptop or being unprepared, produces negative externalities for the remaining students. After all, it only takes only one student surfing the web to distract a whole row of her colleagues, but a student who isn’t there really isn’t a problem. So long as the remaining students are engaged they will each probably get marginally better educational experiences if their classmate- who would otherwise be compelled to virtue, and probably indifference – is instead permitted to stay home.

The reasons ordinarily adduced to require attendance don’t stand up to sustained scrutiny:

1. Coming to Class Improves Student Grades: As Seattle Law Prof. Rafael Pardo pointed out here last year, there is minimal support for the baseline empirical intuition supporting a paternalistic attendance policy: present students do only marginally better on final exams. Indeed, apocraphal data (!) are to the contrary. It has been long rumored that many of the outlines on reserve in Gannett House have, as their first page, a photograph with a comment: “This is X. S/he is the Professor in this course.”

2. Coming to Class Embodies Professionalism: The problem here is if lawyers should not be measured simply for showing up, law students shouldn’t either.

3. It Prevents Students From Being Engaged in Other Pursuits, Like Making Money, and Thus Increases the Effective Cost of Legal Education. Ok, this isn’t a defense of the current system, but can you explain the current ABA stance in any other way? Unlike the laptop policy, or preparation, the ABA actually requires law schools to make attendance mandatory, through regulation 304-d. Thus, teachers (like those at Harvard, at least when I was there) – who do not enforce any attendance requirements put the school potentially in danger of ABA sanctions. Most law professors probably would like to follow HLS’ model, not only to avoid charges of hypocrisy, but because they have grown less enchanted by a paternalistic pedagogy the more they’ve taught. But, being risk-averse rule-followers, they hold their noses and enforce strict attendance policies.

Law school teaching is premised on the idea that our students are adults, able to self-motivate and generate a great deal of the learning themselves, or in combination with their study groups. This orientation justifies the Socratic method’s open-ended character, and is strongly in tension with paternalistic educational policies in the absence of negative externalities.

RESOLVED, THEREFORE: Regulation 304-d should be eliminated.


Fair Use Excuse Abuse on the Loose?

Given the comments on my last post, I should probably stop blogging the Nixon Peabody contretemps. But now that it’s hit VH1’s Best Week Ever as Best Jam of Summer ’07, I want to give as sympathetic a view as I can for the law firm’s plight.

First, fair use expert Matthew Sag has offered this view on legality of Lat’s making the song available:

ATL appears to be on pretty safe ground here in terms of fair use. The initial song is an unwitting (and cruel) self-parody and there is clear public interest in revealing it to the world. ATL’s release of the video is not commercial in the relevant sense because it does not compete with the law firm’s own exploitation of its IP.

Sag believes that a second user has an even stronger claim for protection. One question, though–are we comfortable with a world in which any embarrassing music/video that a company creates can be instantaneously distributed as soon as someone makes a fair use of it? Richard Epstein has argued that “the success of both personal and business endeavors depends on our ability to respect confidences and to keep private information private” (52 Stanford L. Rev. 1003). Epstein complains that the First Amendment has run roughshod over contracts that try to protect privacy.

So perhaps it should be no surprise that copyright–which consistently trumps First Amendment claims–should be invoked by Nixon Peabody. And fair use, as we were reminded in Eldred v. Ashcroft, is one of the few places where copyright tends to give way to First Amendment concerns. Perhaps firms of the future will classify their theme songs as trade secrets and contractually bind employees never to reveal them. It’s not exactly clear where the rock/scissors/paper game of IP/privacy/First Amendment would lead in such a case; Pam Samuelson’s piece on the topic offers some clues.


Intermediary Liability and Animal Cruelty: Humane Society Sues Amazon

rooster2.JPGIt seems that everyone wants to stop information that is allegedly bad. The present example: the NY Times reports that the Humane Society of America has sued Amazon for selling the cockfighting magazines The Feathered Warrior and The Gamecock (seriously, those are the names). The magazines carry ads “for blades that attach to birds’ legs” and the Society claims that in essence Amazon is selling a catalog for illegal goods. Amazon has offered the online cha-cha 1) censorship and 2) can’t ask us to police what we sell. As of next summer when Louisiana’s ban goes into effect, cockfighting is illegal in all states. Nonetheless, “possessing cockfighting paraphernalia is legal in 39 states, while possessing fighting birds is legal in 17.” Which might be why a lawyer for one of the magazine’s asserts that “federal law prohibit[s] promoting cockfighting or shipping birds or gear across state lines, [but] the advertisements themselves were aboveboard.”

I have no idea how one distinguishes between fighting birds and non-fighting birds. Furthermore I don’t think I want to know exactly what qualifies as paraphernalia as the oddities of blades or who knows what attached to animals for sport. Nonetheless, it seems that pinning down what qualifies as either is hard to do. As far as the claim that the Humane Society does not want to censor, the article notes that the Society’s president has named Amazon as facilitator of the activity stating in an op-ed “if ‘your passion in life is watching tormented birds tear each other to pieces, in a bloody pit,’ then “Amazon is the place to go.’” The tactic at issue seems to conflate information with people’s behavior. It forgets a key point about information.

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Firm Decides To Put Billable Hours On Hold

empty ledger2.JPGThe cry that the billable hour is dead or makes little sense seems to go up every year with little action taken, but Ford & Harrison, a good-sized firm in Atlanta, has taken the idea to heart and decided to suspend its minimum billable hour requirement for first year associates. The firm claims that first year associates will have more time to train without worrying about whether they meet the billable minimums. As such they will be able “to spend their time observing depositions and witness interviews and attending hearings and litigation strategy meetings.” If it works, the idea should keep clients happy as well (a stated goal of the program). The firm pays $125,000 for incoming associates which is less than the $160,000 large firms in larger markets pay. Still I wonder whether a large firm could emulate the model to its advantage. Of course the cost of law school and living costs in a large city matter, but I wonder whether a first year would take the lower pay if it meant less billable hours and more training.

Now, before law students get excited by the idea of less work, consider that the amount of work could be the same or even increase. The key difference is the quality of the work may improve. After all those who end up on a year-long document review could bill eight to ten hours a day, be paid well, and have less stress. In contrast, the model Ford & Harrison is using is based on medical training. Those folks are paid much less, work quite hard, and then are rewarded with more of the same if they want to specialize. I think the analog to medicine has flaws (for one thing patient and client management do not map onto to each other all that well). Nonetheless, the idea that one could have a slightly more sane life, enjoy the job, and not worry that the learning and training one must have in the first year—if not years—of practice were somehow counterproductive, is a great one. Hopefully, Ford & Harrison will lead the way. It’s an idea to watch.


How To Generate Nonsense Controversy

Mussolini2.JPG Dan’s post about Four Books A Year noted a recent poll about U.S. reading habits. One may question the survey and ask what about other reading material that may fill any alleged gap, but the attempt to turn the poll into a statement about whether one party is somehow deeper than the other is foolish. Unfortunately Pat Schroeder has tried to do just that by blaming Karl Rove for focusing on simple slogans and claiming that liberals “can’t say anything in less than paragraphs. We really want the whole picture, want to peel the onion.” As Dwight Garner put it “Tony Fratto, more or less knocked that one out of the park: ‘Obfuscation usually requires a lot more words than if you simply focus on fundamental principles, so I’m not at all surprised by the loquaciousness of liberals.’” Furthermore, it is not as if Democrats have avoided a good slogan (remember “It’s the economy, stupid.”?) It is just that the Republicans have been better at using them. There may be a host of reasons for that of late but to say that conservatives don’t read is silly or that reading somehow prevents myopic arguments is silly. Just go to San Francisco and you will see what I mean. I love the Bay Area, but honestly reading does not cure foolishness. Indeed reading does not cure folly for either side of political spectrum. As the movie A Fish Called Wanda put it:

Wanda …you think you’re an intellectual, don’t you, ape?

Otto: Apes don’t read philosophy.

Wanda: Yes they do, Otto, they just don’t understand it.

Now there is something to the idea that the Republicans have been better at framing the debate. The recent excitement for Lakoff’s Don’t Think of an Elephant: Know Your Values and Frame the Debate–The Essential Guide for Progressives (Lakoff is O.K. but not as interesting as Richard Lanham or anything Kenneth Burke has written. For that matter take a look at James Boyd White’s work especially When Word’s Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community) and the writings of James Carville have tried to offer better ways for Democrats to use language to their advantage. Ironically (and somewhat painfully), Ms. Schroeder missed that part of the literature and went for an inaccessible metaphor (or perhaps worse one that resonates only with a small chunk of true believers). To illustrate this idea consider the work of Frank Lutz of whom Al Franken wrote “Language is like music. Unfortunately, the Republicans have a Paul McCartney and we Democrats got stuck with Yoko Ono.”

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Internet Filtering Mandates on Campus

Earlier this summer I spoke at the Institute for Computer Policy and Law, a workshop for professionals responsible for IT infrastructure in higher education. They were all abuzz about a campaign this spring and summer by the RIAA to target colleges and universities and demand that they take more actions to curb illegal downloading by their students. In particular, a just-defeated Senate amendment to the Higher Education Reauthorization Act would have required that colleges and universities install certain forms of DRM and filtering technology on their networks to catch students infringing copyright law through illegal downloading. The amendment also envisioned federal government publication of a list of the 25 colleges and universities that received the most infringement notices from the content industries — not exactly an unbiased metric! (Technically, these were framed as conditions for federal funds, but effectively they’re mandates given the importance of federal money in higher ed, as we know from other contexts.) The amendment’s author, Senate Majority Leader Harry Reid, withdrew it in the face of sharp criticism. But the base bill will be considered in the House this fall (where there have already been hearings on the issue) and everyone expects the same amendment to be back.

I recognize that illegal downloading is illegal and I think schools absolutely should take steps to stop their students from doing it. But there’s two problems with the Reid approach.

First, DRM and filtering technology has the double-whammy of being really expensive and burdensome to install properly on one hand and frequently ineffective on the other. The problems can include interfering with P2P technology that has legitimate and innovative educational purposes. And of course Congress is not offering any extra money to help with meeting this new requirement.

Second, as this great op-ed by Kenneth Green explains, targeting colleges and universities for this problem is obnoxious, because they account for a very small percentage of all illegal downloading and they are already doing a lot, as institutions, to curb it. Most of this infringement happens through commercial ISPs, but there is no parallel push to impose technological mandates and reporting requirements on them. These industries, and some in Congress, are just ganging up on higher education. Or, as Green sums up:

We in the campus community are doing more about P2P and digital piracy — and doing it far better — than the consumer broadband ISPs that provide Internet service to more than 45 percent of American households (more than 35 million homes and small businesses). The RIAA’s singleminded focus on college students — and easily inferred threats to campus officials — misses the larger issue: Digital piracy is a consumer market problem, not simply a campus issue.

So, especially if you are a professor or a student, call your representative and tell the House to back off. Then call your own administrators and make sure your campus is (1) acting to oppose this measure and (2) taking responsible steps to combat illegal downloading.

This post ends my extended guest visit in this space, which I’ve enjoyed very much. Thanks to my hosts here for the invite, and to all of you for comments and e-mails. Drop by Info/Law some time. And now I am headed to a cabin on a lake in northern Minnesota — which has no hot water, never mind WiFi — to rest up before the new semester begins!