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Category: General Law


The Degeneration of Mankind

Today’s Washington Post has a collumn in which Robert Samuelson wags his finger at the mass of exhibitionism on the Internet. He writes:

Call it the ExhibitioNet. It turns out that the Internet has unleashed the greatest outburst of mass exhibitionism in human history. Everyone may not be entitled, as Andy Warhol once suggested, to 15 minutes of fame. But everyone is entitled to strive for 15 minutes — or 30, 90 or much more. We have blogs, “social networking” sites (, Facebook), YouTube and all their rivals. Everything about these sites is a scream for attention. Look at me. Listen to me. Laugh with me — or at me.

This is no longer fringe behavior.

Indeed! In the past screaming for attention and the insistent “Look at me! Listen to me!” was confined only to the sordid fringes of society. You know, people like Washington Post collumnists and television pundits. People like Mr. Samuelson…


Shepardizing the Academy

Having received the guest bogger’s dreaded “here’s your hat, what’s your hurry” from Dan Solove, I thought I’d sign off (and make way for my colleague Rachel Godsil who will undoubtedlly be far more re interesting than I), with a final entry on easing the plight of the scholar.

A perennial complaint of the legal scholar is the difficulty of keeping up with the literature. (Admittedly, the non-academic world, especially the part of it that moves heavy things, is not likely to be sympathetic to our travails, but we’re speaking within the club here).

One time-honored solution, of course, is to re-define one’s field into smaller and smaller fragments, thus excluding increasingly larger amounts of material from that about which one must know. This has its limitations, however. I don’t mean logical limitations because, like particle physics, any field can apparently be reduced to progressively smaller parts. The limits are mostly loss of credibility among colleagues and students when a supposed expert really doesn’t know much about the next quark over.

Anyhow, the problem, as I see it, that we don’t have a simple device to help us decide what’s worth reading. Our cousins in the bench and bar have such a mechanism for the tools of their trade –Shepards for Lexis and whatever West calls its imitation. But there’s no similar labor-saving device for scholarship. Thiink of how much easier our lives would be with some version of this for our articles:

shep61 (Small).jpg

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Stored Text Messages Ruled Not Subject to Wiretap Act


One of my favorite shows, The Wire, is about to start on HBO, and in a life/art convergence moment, Declan McCullagh has just written about a drug case where according to the opinion the government seized “97 kilograms of cocaine, 3 kilograms of crack cocaine, and in excess of $800,000” in part by using taps and gaining access to text messages. As part of their defense, the defendants claimed that the government’s use of stored text messages and a GPS device to track a car were improper. U.S. District Judge Huvelle ruled that the government access to stored text messages is not subject to the Wiretap Act. The opinion makes the distinction between the Wiretap Act and the Stored Communications Act. The opinion also addresses the use of a GPS device to track the car and found that one does not have an expectation of privacy when on public roads but does have an expectation of privacy at home thus data related to using the device while the subject was at home was suppressed.

In short, Judge Huvelle noted that “An ‘intercept’ is defined in the Wiretap Act as ‘the aural or other acquisition of the contents of any wire, electronic, or oral communication though the use of any electronic, mechanical or other device.’” She then explained “Courts consistently have held that the Wiretap Act governs only the acquisition of the contents of electronic communications that occur contemporaneous with their transmission, and not — as is the case here — the subsequent acquisition of such communications while they are held in electronic storage by third parties.” Next Judge Huvelle pointed out that when considering stored electronic communications the Stored Communications Act controls and that the Act “the procedures the government must follow to access the contents of stored electronic communications ‘are considerably less burdensome and less restrictive than those required to obtain a wiretap order under the Wiretap Act.’”

So for those of you who think that text messages or emails are lost to the ether, they aren’t. According to the Stored Communications Act if the provider stores the information for 180 days or less, the government may gain access to it with a warrant.

As for the tracking device, in the case at hand it appears that the government obtained a warrant to use it, the warrant expired, and the government continued to use the device. It seems that Judge Huvelle’s point about privacy on public roads as opposed to in one’s home is that the government never needed a warrant in the first place when tracking someone in public so the expired warrant did not matter. CNET has previously noted that the Washington Supreme Court has ruled that using a GPS device should require a warrant because “use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government.” But the article also quoted Concurring Opinions own Dan Solove as explaining that if the U.S. Supreme Court rules on the use of GPS devices it is unlikely to agree with the Washington ruling.


Finally, A Law School Dedicated To Human Sacrifice

The American Justice School of Law, in Kentucky, has an interesting perspective on the world. It explains:

As implied by Kentucky’s latin motto, “Deo gratiam habeamus,” we hold our rights as a free people by God’s grace as well as human sacrifice.

Does Kentucky’s motto really imply a need for human sacrifice? (My understanding is that the direct translation is “Let us be grateful to God.” What a way to show it!) And how does human sacrifice fit in with ABA accreditation? (Hint: this is a high-risk site inspection.)

If this were a news story, it would surely belong in the Columbia Journalism Review’s page of funny headlines.


The Supreme Court Clerkship Meritocracy

Lots of people, including the NYTimes, have noted and commented on the paucity of females among this year’s Supreme Court clerkship class. But one particular quote in the Times article stuck out. Linda Greenhouse wrote that Souter “explained that he had hired the top four applicants, who turned out to be men.”

Wait a second. The “top four applicants”? Are things really so cut and dried that one can clearly identify the top four applicants? First, it sure seems like most Justices filter out many excellent applicants. Based on the narrow range of schools that provide clerks, it appears that many Justices simply set aside highly qualified applicants based on school alone. I understand that this may be a simple way to limit an otherwise unwieldly pool of candidates. But it surely works to exclude many people – women, minorities, and yes, white men – who would do an equally good job. Many law non-Ivyish law schools have a top grad, an uber-star, who would make a top notch clerk. Alabama has one in the class of 2006 (a female) and I know more are in the pipeline.

But even if one accepts the assumption that four schools – Yale, Chicago, Harvard and Stanford (the schools identified by Brian Leiter as disproportionate feeders) – graduate better potential clerks than weaklings like Alabama, Texas, Temple, Vanderbilt, Emory, and Duke, I still doubt that whatever assessment tools the Justices use really identify the four objectively best candidates. Perhaps if the Justices had some data showing that a Yale Law Journal graduates who graduated summa from Williams is less likely to flame out than a Yale grad who graduated summa from Knox College, I’d buy it. And maybe the person who ingratiates himself to Larry Tribe really does pan out more often than the person who studies and thinks really hard, but never desires to do research assistance – or who does research for Jon Hanson. I just doubt it.

Diversity on the bench matters, if only because lived experience shows that people with different life experiences approach problems differently. (In that sense, Alabama’s monochromatic judiciary – 15 white men and 4 white women sit on the state’s three appellate courts – guarantees a cramped view of how to solve conflicts.) Diversity among clerks matters as well, partly because clerks sometimes do affect outcomes and partly because clerks form a primary pool for future solicitors, Supreme Court litigators, academics, and other leaders in the law. When Justice Souter and others (and clearly, Souter is relatively good on sex diversity) adopt dubious heuristics for evaluating candidates, their narrow choices have a wide ripple effect.

I’m certain that all nine Justices are focused on hiring good clerks. I simply believe that a pool of equally strong, and more diverse “top four applicants” can be found on the cutting room floor.


Are We Writing Only For Ourselves?

In 1992, Judge Harry Edwards wrote an article in Michigan, The Growing Disjuncture Between Legal Education and the Legal Profession, which was, as the title suggests, an effort to redirect legal scholarship from what Edwards perceived as a too-abstract and theoretical path towards work that would be of more immediate use to h judges and lawyers. I think it fair to say that, while legal scholarship, has since evolved in a variety of directions, one of them has not been more practical scholarship along the lines Judge Edwards urged.

His piece has been much discussed, but also essentially ignored as legal scholarship has moved futher in the direction Edwards decried (I’m speaking too broadly here, I know, since terrific doctrinal scholarship continues to be produced and an increasingly empirical literature might be the most “practical” of anything that appears in the law reviews). But the median journal article, so to speak, at least in the leading law reviews, is one it is hard to imagine a lawyer or court citing, and not much easier to imagine your average policy-maker even understanding.

But this is old news. As I start this academic year, iit occurred to me that not only is legal scholarship no longer written for judges and attorneys but we in the legal academy seem far less interested than in past years in even acquainting future judges, lawers, legislators, and policy makers with our scholarship. Casebooks are increasing ignoring the literature that is the stuff of academic discussions of the topic in question, and, when the scholarship is cited it is typically in tip-of-the-hat fashion.

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Easterbrook To Be Elevated to Chief Judge

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Just a quick heads up. According to the National Law Journal Chief Judge Joel M. Flaum turns 70 soon and when that happens Judge Frank H. Easterbrook will be elevated to Chief Judge of the 7th U.S. Circuit Court of Appeals. The article notes that the position is mainly administrative and that to accommodate his new duties, Judge Easterbrook will reduce his teaching load to one course rather than two a year.

For those interested the article lists some criticisms of the judge and some praise. In addition the article notes that Judge Easterbrook may “ask district judges of the circuit to occasionally sit on a 7th Circuit panel, giving them a view from the appellate court” which apparently is “a change from a ban on visiting judges set by Posner when he was chief from 1993 to 2000.”


Senseless Secrecy

An editorial in yesterday’s New York Times criticized the current administration’s attempts to reclassify decades old information, such as the number of missiles and bombers in the United States’ arsenal during the Nixon era. The editorial notes that this administration seems to have taken classification to new and frivolous levels, and cites the National Security Archive’s postings on “dubious secrets”, which lists dozens of cases in which the government classified information that no reasonable person would find worthy of secrecy. (My favorite example is the decision by a 1999 CIA reviewer to classify a Ford-era CIA memo discussing plans to sabotage the “annual courier flight of the Government of the North Pole” by its “Prime Minister and Chief Courier S. Claus”).

Like the classification process, the executive may also have misused the state secrets privilege. (That’s the same privilege that the government is asserting as grounds for dismissal of cases challenging the NSA’s warrantless wiretapping program). That privilege was first formally recognized by the Supreme Court in United States v. Reynolds, where the government asserted the privilege to prevent disclosure of the Air Force’s accident investigation report on the crash of a B-29 aircraft in a tort suit brought by widows of three civilians on board. The government argued that the report contained information about secret Air Force missions, and the Court agreed that the report should be withheld from discovery to protect national security. When the report was finally declassified and publicly disclosed, however, it did not appear to contain any information relevant to national security. (For more details on the Reynolds case, see “Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds,” published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003)

These examples make me wonder whether government officials who erroneously classify information should be subject to some type of penalty. Not only do these sorts of misclassifications keep information about the workings of the government from the public, they may also jeopardize national security by making judges skeptical of the executive’s judgment and thus less likely to defer in those cases in which secrecy is actually justified.


Briefing The First Amendment in Kentucky

first_amendment.jpgWe’ve previously covered the fight between Mark Nickolas, of the Blue Grass Report, and Kentucky Governor Ernie Fletcher, who recently plea bargained his way out of other trouble. As you may recall, the Governor blocked state employees from reading “blogs” while at work. While the State argued that the ban was intended to increase productivity, many suspected that the ban was actually targeted at Nickolas’ critical coverage of Fletcher’s troubled administration.

Recent developments in the case merit further comment. The complaint, drafted as a joint product of Kentucky counsel Fernandez Friedman Grossman & Kohn and Public Citizen, alleged, in part, that:

33. The state’s ban on blogs is inconsistently applied. In particular, several prominent websites commonly referred to as blogs remained available on state computers . . . including the popular site Drudge Report . . . and a website belonging to . . . Ann Coulter.”

39. [Although the state had claimed that the reason for the anti-blog policy was “[s]everal categories [of website], including entertainment and blogs, showed large state employee usage volume,”] the state continues to allow access to newspapers and magazine sites that are not classified as blogs, even though this category of website is the third most popular category [of site visited by Kentucky employees.]

In Nickolas’ cross-motion for a preliminary injunction, the arguments are fleshed out. The brief makes a two big attacks on Fletcher’s ban.

  • Viewpoint Discrimination: The state has a “whitelist” that overrides the default anti-blog settings. That whitelist permits, for example, SCOTUSBlog. [No other law blogs that I can see made it onto the approved list. What’s up with that?] The state also has a general policy of not blocking sites that “are purely policy-oriented”, a decision that is made by an administrator on a site-by-site basis
  • Content Discrimination: Citing City of Cincinnati v. Discovery Network (the case about newspaper racks) the brief argues that the distinction between blogs and non-blogs “is at least content based”. The distinction is to boot irrational: (1) newspapers often have blog-like characteristics; and (2) the state can not validly distinguish between news-dissemination sites and personal diaries.

I haven’t read the State’s briefs, and as I’ve mentioned numerous times, I’m no expert on First Amendment law. But it seems to me that if the case were cleaner, i.e., there were no viewpoint discrimination problems of the Couter-variety thrown in,* this type of ban would turn on whether accessing internet at work is better seen as a Pickering (employee rights / speech protective) problem or as a Cornelius (NAACP forum / not speech protective) problem. The consequences of viewing the case through a fora-lens were well expressed by Judge Edwards of the D.C. Circuit, writing for the overturned appellate majority in Cornelius below:

Nothing more need be said of this dissenting opinion. The dissent has simply attempted–by advocating an astonishingly narrow construction of the First Amendment and by refusing even to question the Government’s assertions of interest in this case–to make the First Amendment a nullity in that part of the public domain that it considers the “nonpublic forum.” The Constitution does not envision such pockets of tyranny, and we unqualifiedly repudiate the dissent’s attempt to create them. [H/T: Reader CG]

Some more general thoughts.

1. Terrible job at creating a clean litigation record by Kentucky. One might imagine a policy that said something like this: “We’ve studied the issue, and we’ve found that employees visiting blogs (a) spend more time on the internet than employees who just surf for basketball scores and obituaries in the paper; and (b) more often spend time on non-state business. Therefore, we’ll ban blogs.” This policy would be also be suspect, but I think that it would withstand a facial challenge. But the actual record, at least that part of it in the plaintiff’s brief, seems preclude this defense entirely.

2. I am troubled, as I am whenever I think about these issues, by the force of the argument to the effect that Kentucky could constitutionally cut its T1 line entirely, and that greater power entails a lesser. Playing out that argument in the First Amendment context is always where I lose the thread of the discussion and seek refuge in the more logical waters of corporate law. And (obviously) the Governor’s political intent here is common among sensitive politicians, and we might want to protect state employees (and bloggers) expressive rights in a way we didn’t want to protect the NAACP’s right to solicit for donations, an argument the brief makes to a degree.

3. This is a terrific fact pattern for a con law exam.

FN* Or the more insidious discrimination between our site and SCOTUSBlog.


Pi v. Delta

pie.pngIn law student notes, plaintiffs are commonly denoted by π, and defendants by Δ. Even as I slavishly replicated this tradition as a student, I never understood it. Why are plaintiffs associated with “infinite . . . expansion . . . an irrational . . . indeed, a transcendental . . . expression“? And defendants a symbol variously matched with a proofreading symbol for deletion, the difference operator, and baryons?

Paging Nate Oman: a neat history of law problem to answer!

Update: An actual case suggests the practice is old. Pi v. Delta, 175 Conn. 527, 534, 400 A.2d 709 (1978) was a strange habeas proceeding for custody of a child. The case name is, alas, a fiction:

Upon the suggestion of the parties and in accordance with the spirit and intent of the order of the Superior Court granting the plaintiff’s motion to substitute fictitious names, it is ordered that the names of the parties involved in this appeal shall not be disclosed and that the records and briefs shall not be distributed to the various libraries of the state by the Reporter of Judicial Decisions. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of this court.