Category: General Law

A Visit to New Orleans

Nola Resize I hope.jpgThis photo shows a tour bus on what appears to be a “Katrina Devastation Tour” in New Orleans’ Lower Ninth Ward. Virtually nothing has been reconstructed there, and a weekend visit evidenced lots of rebuilding to be done elsewhere in the city.

I’ve just gotten back from Nola, where I was celebrating a wedding of two friends. That was terrific, and the French Quarter is still going strong (I highly recommend Broussard’s for dinner and Palm Court for music.) But I had no idea what it meant for 80% of a city to flood, and for FEMA trailers to dominate the residential landscape over a year after the deluge.

What’s going on? I don’t have a deep grasp of the dynamics here, but one narrative kept repeating: the chicken & egg dynamic of residents not wanting to come back until businesses returned and businesses not wanting to re-open until residents returned. I stayed in a middle class enclave near the University of New Orleans, which apparently had cafes, fitness clubs, restaurants, and grocery stores before the storm—but all were still boarded up. The only food I passed was a mobile cart labeled “Pizza Milano.” So it’s no wonder many houses are abandoned, or fronted by the ubiquitous (and quite small) FEMA trailers.

In this way, Nola resembles many inner-cities that seem trapped in cycles of middle-class flight and declining amenities. I imagine there might be some good lessons for reconstruction from other cities that managed to revitalize.

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OJ Simpson’s “If I Did It” Hits eBay

Not surprisingly, copies of OJ’s newly suppressed book, If I Did It, are now available on eBay. As I write, the highest bid for a copy weighs in at $15,300. Meanwhile, the New York Times tells us that an attorney for Nicole Brown SImpson is demanding that eBay banish the book. The article also suggests that eBay has already been pulling the books from its listings. If it has, it’s not doing a great job. There are six copies up right now, and at least one has been posted for well over a day.

I have no idea about the legal implications here. Does eBay have a legal duty to pull them? I suppose this might turn on how, and conceivably, under what contractual limits, the sellers obtained the book. If the sellers obtained the book by theft, and eBay knows or should know this, I suppose it might be criminally liable for “fencing” the volume. If the seller obtained the book under a confidentiality agreement, which he or she is violating, I’m not clear that eBay has any duties at all. And if Nicole’s lawyers hope to suppress the book on the grounds that it is hurtful, or that OJ is an ass…that just seems like a loser of a legal argument. eBay could choose to pull If I Did It out of kindness or good taste, but I have to think that this book is only one of many items currently listed on eBay that could be excluded on these grounds.

The likely reality is that copies of this book are going to circulate, OJ won’t benefit from these sales (beyond his generous advance), and this trash will fetch top dollar for a relatively short time. For the hard-core OJ Simpson fan, it’s probably best to wait out the frenzy. If we’re lucky, OJ’s book will be selling on eBay’s before you know it.

Resentment, Rationality, and Paris Hilton

Whenever I survey some behavioral law & econ literature, I seem to run into some variant of the “ultimatum game.” Two parties usually “play” the game. The first is given some amount of money, and then has to decide how much to allocate to the second, and how much to keep to himself. The second then has to decide whether to take what is given (and allow the first to keep what he has), or to refuse it, in order to deny the first his share as well. I have heard that the “second party” will often reject amounts below 30% of the overall pie. The principles of ultimatum games may influence a wide range of research:

Ph.D. candidates in economics at Harvard recently ran an experiment to figure out how inequality affects workers’ efforts. They gave three groups of participants puzzles to solve and rewarded them in different ways. The first group, in which everyone received the same reward, regardless of performance, didn’t solve many puzzles. The group in which the best maze solver got all of the rewards — and no one else got anything — didn’t do too much better. The group that had a sliding scale of rewards, based on performance, did the best.

Economists and philosophers draw diverse “morals” from the ultimatum story. Robert Frank argues that the prevalence of “resentful” responses leads fairer “individuals [to] succeed, even in highly competitive environments, because their commitment to principle makes them more attractive as trading partners.” Critics suggest that the the refusenik manifests irrationality.

That’s a pretty intractable debate, but I think this essay on Paris Hilton by Kay Hymovitz provides an interesting point of view on what’s at stake in the interpretive struggle.

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Sample Trolls, Serendipity, and Citation-itis

troll.jpgTim Wu adds a thoughtful contribution to the “copyright-run-amok” literature with his piece Jay-Z vs. the Sample Troll in Slate. He covers the litigation crusade of Bridgeport Music, Inc., which holds “portfolios of old rights (sometimes accumulated in dubious fashion) and use[s] lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable.” The company has commodified every bit of its music, suing over sampling of tiny fragments of sound that are unnoticeable to the average listener:

in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample . . . it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport’s campaign.

As Wu notes, “there’s only one appellate court, the 6th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license.” But that decision has cast a pall over creativity in many musical fields.

Why would such an extreme view find adherents? I think the “get a license” school is importing legal academic norms of citation into creative industries. Essentially, the 6th Circuit is saying “give credit for everything you use–and while you’re at it, pay for it!” This position might make some sense if there were searchable databases for music and movies that are nearly as useful as the textual databases lawyers use–and if the materials could be obtained for the types of prices we pay. But music and movie searching is a lot more difficult than text search. (Google likely paid $1.6 billion for YouTube not because of the site’s technology, but for all the labor its users put in to categorizing the video clips on it via tags, favorites lists, subscriptions, etc.). Moreover, the types of institutions that guide print permissions are not as easy to use in the music business. One intern I know has told me that it takes weeks or months for his company to clear permissions, and often they will give no reason for a refusal to clear rights.

But even if the search/attribution and payment problems were solved, would we really want an academic model of production to pervade the creative industries? What about the role of spontaneity, of the serendipitous fusion of diverse influences? Do we really want moviemakers to wait for months to see if they can get permission to have a certain image in the background? Or for remixers to worry that some lurking troll can grab massive damages as soon as they gain notoriety? As Julie Cohen argues, “Within a given network of social and cultural relations, an important . . . determinant of creative ferment is the play, or freedom of movement, that the network affords.” The real menace of the sample trolls is to inject ever more lawyerly caution into realms of life that depend on serendipity.

Photo Credit: Stock Exchange/Kfawcett.


who can resist that face??

Tyler 2.jpg

Apropos of pretty much nothing, I thought I’d share a picture of my adorable mutt, Tyler. I just adopted him this past August. As one of my friends says – Tyler is of “unknown but surely disreputable origin.” My guess is he’s part greyhound, maybe some springer spaniel, maybe some dalmation.

I note also that this is not Tyler’s first appearance in the blogosphere – he once made a cameo appearance in a Jurisdynamics post, courtesy of Jim Chen.

Finally, in an effort to give this post some socially useful content, I would highly recommend to any prospective pet owners out there that you consider adopting your furry (or feathered, or scaled) friend from a shelter. is a wonderful, nationwide resource. That’s how I found Tyler. Just go to the site, type in your zip code and other requested info., and they’ll link you up to info. on local shelter pets that match your interests.


Teaching Rape in a Criminal Law Class

I am teaching Criminal Law this semester and just finished a unit on rape. I am always fascinated by the number of colleagues I encounter who do not teach rape in their introductory criminal law class, presumably because they fear the topic is too controversial or inflammatory. I, on the other hand, can’t imagine not teaching it. It’s a topic that unfortunately touches so many students’ lives and also serves as a wonderful example of how changing social norms and the criminal law shape — and reflect — each other. I also find every year that my two classes on rape law contain some of the most thoughtful and engaging class discussions of the entire semester. I am always tremendously proud of the way my students approach the materal. But maybe my perspective is unique and I would love to hear other thoughts. For our law professor readers, do you include a unit on rape, and why or why not? For our law student readers, did you find it important or useful to cover rape law in your introductory crim law course?


Wash. Post: “U.S. Seeks Silence on CIA Prisons”

from today’s Washington Post — here are the first two paragraphs, for the rest you can link from this post (the whole post’s a hyperlink)

U.S. Seeks Silence on CIA Prisons

Court Is Asked to Bar Detainees From Talking About Interrogations

By Carol D. Leonnig and Eric Rich

Washington Post Staff Writers

Saturday, November 4, 2006; A01

The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the “alternative interrogation methods” that their captors used to get them to talk.

The government says in new court filings that those interrogation methods are now among the nation’s most sensitive national security secrets and that their release — even to the detainees’ own attorneys — “could reasonably be expected to cause extremely grave damage.” Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26.

Academics & Search Engines

To balance what I’ve just written on politics & search, let me excerpt an article considerably more sympathetic to the “manipulation of results” enterprise:

Let’s say you’re a law professor who is trying to build a reputation as an expert on affirmative action. In the past, you’d build that reputation by publishing articles in various high-profile publications, or journals with scholarly credentials. Many of those articles would show up in a Google search using the key words “affirmative action,” of course, but they’d be scattered all over the results. Because Google considers links to be a kind of vote endorsing the content of a given page, if you created a specific page called “affirmative action” — where your various articles and thoughts were collected — and encouraged others to link to that page, you could very quickly “own” affirmative action in Google. (Right now, none of the top results are associated with an individual, and most are intended as neutral, dictionary-style definitions and discussions. But that needn’t be the case.) And of course, once your page made it to the Top 10, positive feedback would be likely to propel your page higher in the rankings, as more people linked to the page, having found it originally via Google.


This strategy happens to be old news to the bottom-feeders of the digital world: the spam artists who have long hacked the Google database to ensure that their sites rank highly when people search for “sex” and “blackjack” and “cheap Canadian meds.” But just because the spammers got there first doesn’t mean that Google-centric positioning cheapens the work of intellectuals. The Nation and Harper’s exploit the very same postal system that the junk mail impresarios use, after all.


[It may be] inevitable that intellectuals who are interested in speaking to a wider audience will orient their work around Google’s rising influence. [F]or the mainstream understanding of complex issues, Google (and Wikipedia, whose entries often rank near the top of Google searches) are quickly becoming central authorities.

I’m a bit less optimistic about this development than Johnson is, if only because I’ve long worried about unintended consequences of ranking systems. But I may just be expressing an academic prejudice against populist editing. And I must say that sites like this, by Vernellia R. Randall, are a great public service that likely deserve to be the top hit for a Google search for “race and health.”

EULA Hoops

End User Licens Agreements (EULAs) govern virtually all software programs, and their restrictive terms have tended to multiply and intensify over time. Wendy Seltzer has expertly deconstructed the new Windows Vista license, and a number of commenters have added their own complaints. The terms of use appear to eviscerate rights traditionally enjoyed by users under copyright law. Seltzer concludes:

Users never asked for these impossible limitations. Microsoft decided unilaterally to add them, claiming it could abrogate personal ownership, fair use, and first sale rights because “The software is licensed, not sold.” If Microsoft faced real market competition on the home desktop, users could vote with their wallets, but anticompetitive practices and network effects [discussed here] make Microsoft a like-it-or-not proposition for most users.

Eric Goldman has also been covering the EULA wars, here and here.

Following up on these posts and some of Dave’s interesting contractual hypotheticals, I’m wondering how far the EULA can go. Can someone agree to a term like “The meaning of any contested terms of this license shall be exclusively determined by an agent of the licensor, and licensee hereby waives any right to appeal that determination”? Could this just be viewed as just another form of (lawless) arbitration? Or is this type of term a bit too extreme to be recognized by a court? If anyone can point to a good discussion of the topic, I’d be grateful.