Archive for the ‘Uncategorized’ Category

The Yale Law Journal Online: Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth

posted by Yale Law Journal

The Yale Law Journal Online is pleased to announce the publication of Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth, by Paula A. Monopoli.  In this piece, Monopoli argues that Congress has a historic opportunity to resolve an ongoing gender disparity in ERISA through considered pension reforms.  She outlines the steps that may be necessary to bring federal pension law into alignment with the general movement toward gender equality in marriage property law.

Preferred citation: Paula A. Monopoli, Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth, 119 YALE L.J. ONLINE 61 (2009), http://yalelawjournal.org/2009/11/4/monopoli.html.

  November 6, 2009 at 8:08 am   Posted in: Uncategorized   Print This Post   No Comments

From the other side at AALS . . .

posted by Rachel Godsil

It has been a decade since I slept poorly at the Wardman in November – and I must admit to having some unpleasant flashbacks.  Last night, like 10 years ago, I got lost on my way to an interviewing suite.  I still find the bar scene a little anxiety producing.  So – to those of you interviewing today – many of us on the other side of the couch do have empathy for you!

Needless to say, I acknowledge the difference.  We on the interviewing side are happily (hopefully) ensconced as academics – a position that is frankly worth running from hotel suite to hotel suite.  We are (hopefully) happy to talk about the benefits of our particular institution.  And it has been fabulous to read the scholarship of those on the market. 

I thought I’d post this morning mainly to wish you all good luck — and to explain why I am not posting anything substantive until next week.  And a quick tip:  when you are given the opportunity to ask any questions – find a question that allows for an interesting and idiosyncratic answer.   I promise that every school will have an identical answer to the ubiquitous “what support does your institution have for junior faculty.”  We all have colloquia, research stipends, and collegial sharing of documents.  We all generally do try to give junior faculty reasonable teaching loads, etc.  And if we don’t do any of these things, we won’t acknowledge it here!

  November 6, 2009 at 5:34 am  Tags: academia  Posted in: Uncategorized   Print This Post   One Comment

Update on the Grassley Amendment

posted by Alex Kreit

It appears that Sen. Charles Grassley (R-IA) has pulled his amendment (that I blogged about on Tuesday here) to the National Criminal Justice Commission Act that would have prevented the commission from even discussing the decriminalization or legalization of any controlled substance.  Grassley was asked about the amendment by a reporter yesterday during a conference call.  He did not explain why he decided to pull the amendment, but did affirm that it would have applied to stop the discussion of even medical marijuana by the Commission.  Law Enforcement Against Prohibition has the relevant exchange between Grassley and the reporter.

  November 5, 2009 at 4:53 pm   Posted in: Uncategorized   Print This Post   No Comments

The Employer’s Strategy in Gross v. FBL Financials

posted by Michael Zimmer

Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).

For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.

The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action —  and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.

The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case?  The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.

For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.

Read the rest of this post »

  November 4, 2009 at 10:43 am   Posted in: Civil Procedure, Civil Rights, Employment Law, Uncategorized   Print This Post   4 Comments

In Memoriam

posted by Gerard Magliocca

Mary Mitchell, a beloved member of the Indiana University — Indianapolis faculty, passed away today after a sudden illness.  Mary was a wonderful teacher who cared deeply about her students and fought passionately for her beliefs during her three decades at the law school.  We are all devastated by this loss.

  November 4, 2009 at 10:43 am   Posted in: Uncategorized   Print This Post   No Comments

One Year of Prop 8: A recap

posted by Kaimipono D. Wenger

A year ago today, California voters adopted Proposition 8 by a 52-48 margin. Last night, voters on the other side of the country voted the same way, by almost exactly the same margin.

I was interviewed earlier today about the issue, and the anchor asked a few questions like “What happened?” and “What’s next?” In the interview environment, I could give only quick sound bite answers. But those are complicated questions which deserve deeper discussion. So in this post, I’ll talk about what has happened in the marriage equality movement over the past year; and in a follow up, I’ll talk about what’s next for marriage equality. Read the rest of this post »

  November 4, 2009 at 8:56 am  Tags: proposition 8  Posted in: Uncategorized   Print This Post   2 Comments

Election Night 2009

posted by Alex Kreit

Like any good political junkie, I have been spending the past few hours switching back and forth between MSNBC and CNN on the television while frantically reloading talkingpointsmemo.com on my laptop.  We have results in for the two big governors races, with Republicans picking up wins in Virginia and New Jersey.  Meanwhile, the most closely watched ballot initiative, the marriage equality initiative Measure 1 in Maine (for those who have not been following the measure closely, a “No” vote on Measure 1 is a vote in favor of gay marriage), remains too close to call.

Flying under the radar (on this already somewhat under the radar election night), however, were two drug policy reform measures in Maine and Breckenridge, Colorado.  And both appear to have won handily, with Mainers voting to approve the creation of a licensed medical marijuana dispensary system for patients to obtain medicinal marijuana and Breckenridge residents voting to decriminalize possession of up to one ounce of marijuana.

And with that, it’s back to reloading talkingpointsmemo.com for me.

  November 3, 2009 at 9:59 pm   Posted in: Uncategorized   Print This Post   6 Comments

AALS Hiring Conference

posted by Gerard Magliocca

I’ll be in DC (mostly in a hotel room) on Friday and Saturday as chair of IU-Indy’s hiring committee.  If any regular readers of CoOp will be at the conference, email me and perhaps we can find some time to meet up.

  November 3, 2009 at 5:15 pm   Posted in: Uncategorized   Print This Post   No Comments

Politicians: Have you talked to your constituents about drug policy?

posted by Alex Kreit

Thanks to Deven and the rest of the Concurring Opinions crew for the opportunity to guest-blog this month, I’m very excited to be here.  I’ll be blogging mostly about drug policy issues, though I will likely touch on some other topics along the way as well (warning to those easily bored: this may involve me giving into my nerdiest law nerd-temptations and writing a post or two about facial and as-applied challenges.)

In my first post here though, I’d like to raise the question of why it is that reforming drug policy in the United States continues to be such a taboo political topic.  This something that I think about often, but it is especially fresh in my mind with some less-surprising-than-it-should-be-news from today about Senator Jim Webb’s (D-VA) bill to create a historic blue-ribbon commission to study our nation’s criminal justice system, with a focus on reducing our unusually high incarceration rate.  Sen. Charles Grassley (R-IA), has proposed an amendment to the bill that would prohibit the commission from making any “findings related to . . . criminal justice policies and practices or reform recommendations that involve, support, or otherwise discuss the decriminalization of any offense under the Controlled Substances Act or the legalization of any controlled substance listed under the Controlled Substances Act.”

Grassley’s proposal would be odd enough if it merely prevented the panel from recommending the decriminalization or legalization of any controlled substance.  After all, it isn’t as if Webb’s commission will be writing the laws themselves; their task will to make recommendations that law-makers would be free to ignore or follow as they choose.  Grassely’s proposal goes beyond restrictions on recommendations, however, by seeking to prohibit even the mere discussion of decriminalizing or legalizing any controlled substance.  While Grassley is at it, maybe he should also instruct the commission members to shield their eyes from recent reports by the United Nations and the CATO Institute that found Portugal’s 8-year-old drug decriminalization policy has been a great success.

Of course, Grassley is far from alone among politicians in his aversion to even discussing alternatives to our current drug policy.  In many ways, President Obama’s “drug czar” Gil Kerlikowske has been a breath of fresh air for his willingness to entertain and even advocate for certain drug policy reforms.  But, when asked about legalization, his stock answer is that “legalization is not in the president’s vocabulary, and it’s not in mine.”  Even the judiciary has gotten into the act, with the Supreme Court’s 2007 decision in Morse v. Frederick, which held that the First Amendment does not apply to protect student speech that school officials reasonably view as promoting illegal drug use.

So: why are we so afraid even to discuss ideas like decriminalization or legalization?  For some of my quick, initial thoughts (and a request for yours as well), follow me to the flip… Read the rest of this post »

  November 3, 2009 at 5:03 pm   Posted in: Uncategorized   Print This Post   5 Comments

Engaged – and Engaging – Scholarship – Paul Butler’s Let’s Get Free

posted by Rachel Godsil

I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me.   The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture.  The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A Hip-Hop Theory of Justice. 

Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial.   But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice.  Butler is doing far more than telling a good story about lawyering.  He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable.  He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop.  It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not.  He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop). 

Read the rest of this post »

  November 3, 2009 at 3:56 pm   Posted in: Book Reviews, Civil Rights, Uncategorized   Print This Post   No Comments

Fear of a Google Planet

posted by Matthew Sag

Should we fear Google? This question, unthinkable ten, maybe even five, years ago, seems to dominate internet policy discussion today. AT&T is afraid of Google Voice. Apple might be afraid of the Google Phone. Microsoft is afraid that Google Apps will make its Office suit redundant. These fears are justified, but they are also good. In most cases Googlephobia is a condition suffered by competitors. Google will probably kill off some competitors, but it will force many more to continue to innovate and provide better products to the consumer at lower prices. So, yes, some people should fear Google. But should we the public?

“Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of sight and hearing being instantly aroused. In both cases the eyes and mouth are widely opened, and the eyebrows raised.” Charles Darwin, The Expression of the Emotions in Man and Animals.

In its pre-settlement incarnation, the Google Book Search (GBS) project was merely an astonishing attempt to build a comprehensive search engine to allow full text searching inside millions of books. The GBS envisaged in the Settlement (before the DOJ sent the parties back to the drawing-board) was much more ambitious. Not satisfied with digitization, indexing and limited display of books consistent with copyright law’s fair use doctrine, Google, the Authors Guild and a handful of publishers struck a deal which allowed for the commoditization of digital books as direct substitutes for paper copies. Subject to an opt-out and a few other exclusions, the Settlement swept in almost all books subject to U.S. copyrights and established an entirely new institutional framework for clearing digital book rights.

My personal view is that justified astonishment at the GBS Settlement has, in too many cases, given way to unjustified fear. Google is still far from being the new Microsoft as the Department of Justice’s Christine Varney has asserted. It certainly does not act like it. Google’s track record of openness and innovation are heartening and there is very little evidence so far that they plan on abandoning their “don’t be evil” corporate culture.

Googlephobia appears to be the foundation of some pretty wild assertions in the context of the Google Book dispute in particular. Google conceives that it is set to liberate out-of-print books from their dusty dungeons on the relatively inaccessible shelves of the worlds great libraries. Critics of the deal (and the initial more modest GBS) see plans for monopolization of hitherto non-existent markets, the destruction of libraries, universities and even the book itself.

The Google Book Settlement was not perfect, but my own fear is that Googlephobia and the intervention of the Department of Justice have left us worse off than we would have otherwise been. The Google skeptics are right about a number of the Settlement’s shortcomings, but now that the parties renegotiating the deal we had all better hope that GBS version 3 is better, fairer, and more accessible — not just smaller and less ambitious.

It might be naive to simply trust in Google, but the fear Google now inspires seems equally misplaced.

  November 3, 2009 at 1:09 pm  Tags: copyright, fair use, Google, Google Book Settlement  Posted in: Uncategorized   Print This Post   2 Comments

From the Concurring Opinions mailbox

posted by Kaimipono D. Wenger

We get lots of mail. Some messages are very useful and make it onto the blog; others are useful, but not really blog material. A substantial portion of messages are nice but basically irrelevant to the Co-Op bloggers. And another substantial portion is . . . err, quirky. Fortunately, we just received one example which so perfectly captures the category, that I thought I’d reproduce it in its entirety for our readers’ edification and enjoyment. (One note — due to the deficiencies of control-V, the widespread use of boldface in the message did not properly copy. My apologies. Rest assured that the original contained substantial use of boldface.) Everything that follows this paragraph (including section breaks, editing notes, and several “emphasis added”s) is from our interlocutor. Enjoy!

***

Who was the last law school prof (or even a Supreme or even a law school student) to read the 1787-1788 Federalist (at least 1,000 times) to get ANY clue about what the 1787 U.S.A. Constitution says or means regarding *federalism* ??? Read the rest of this post »

  November 3, 2009 at 1:08 pm  Tags: constitutional law for the insane  Posted in: Uncategorized   Print This Post   3 Comments

Vanderbilt Law Review En Banc PCAOB Roundtable

posted by Vanderbilt Law Review

Vanderbilt Law Review En Banc is pleased to present the “first take” pieces for its inaugural Roundtable from Professors Hal Bruff, Steven Calabresi, Gary Lawson, Rick Pildes, and Christopher Yoo. The debate is on Free Enterprise Fund v. Public Company Accounting Oversight Board. Professor Peter Strauss’s previously laid the foundation for the debate with his introductory piece. We will also be publishing response pieces from the professors on December 7.

Harold H. Bruff, Bringing the Independent Agencies in from the Cold, 62 Vand. L. Rev. En Banc 63 (2009).

Gary Lawson, The “Principal” Reason Why the PCAOB is Unconstitutional, 62 Vand. L. Rev. En Banc 73 (2009).

Richard H. Pildes, Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L. Rev. En Banc 85 (2009).

Steven G. Calabresi & Christopher S. Yoo, Remove Morrison v. Olson, 62 Vand. L. Rev. En Banc 103 (2009).

  November 2, 2009 at 2:37 pm   Posted in: Uncategorized   Print This Post   One Comment

Drafting the 28th Amendment

posted by Michael Zimmer

With only 27 amendments so far in our long history with our present Constitution, a colleague and I asked all of our Constitutional Law students in the fall of 2005 to propose a 28^th Amendment. This was to celebrate Constitution Day, so we opened the exercise to everyone in the law school community. There was a range of responses across different areas of Constitutional law, including several structural proposals and the expansion of negative as well as of positive individual rights. Starting at number 10 and moving to number 1, here are the top 10 proposals:

10. A tie:

Equal protection because of sexual orientation. This adds to the idea that, at least in this group of law students, issues over sexual orientation should be resolved in favor of gay and lesbian rights.

Repeal of the Second Amendment. This was before Heller but the issue obviously was on the horizon for some. Since both classes used the Chemerinsky casebook that started with the problem of the Second Amendment even before Heller, that might explain the focus. I wonder if the response would be different if the law school was not located in the heart of a major city.

The right to equal education. Each year that I have taught San Antonio v. Rodriguez, a number of students express absolute shock that this is not already a protected individual right. Law students seem to be committed to education, though sometimes their contribution to it might appear a little weak on any particular day.

Constitutional protection for broad campaign finance legislation. Given the way our federal government operates, or fails to, this one is no surprise.

6. Equal protection because of sex or gender. The Equal Rights Amendment still lives in the hearts of some students, despite the expansion of the equal protection clause to cover sex discrimination.

5. A tie:          

Make explicit a constitutional right to privacy.

Prohibit the death penalty.

3. Guarantee universal health care. This may just show how long this issue has been on the agenda.

2. Presidential election by direct vote. Bush v. Gore still had impact five years later.

1. Legalize same-sex marriage or civil unions. While phrased somewhat differently, proposals on this topic constituted more than twice as many amendments as the next most popular proposal. Not one proposal was made to restrict same-sex marriage or civil unions. 

Read the rest of this post »

  November 2, 2009 at 10:22 am   Posted in: Uncategorized   Print This Post   10 Comments

Introducing Guest Blogger Alex Kreit

posted by Deven Desai

I am excited to introduce my colleague, Alex Kreit, as a guest blogger with us this month. Alex is an assistant professor and director of the Center for Law and Social Justice at Thomas Jefferson School of Law where he teaches Criminal Law, Criminal Procedure and Property. This spring, he will be teaching a course on Controlled Substances law.

After graduating from the University of Pennsylvania Law School, Alex clerked for the Honorable M. Blane Michael on the U.S. Fourth Circuit Court of Appeals. He then worked as an associate at Morrison & Foerster in San Francisco where his practice focused on securities and appellate litigation. While at Morrison, he co-authored an amicus curiae brief for Students for Sensible Drug Policy in the U.S. Supreme Court case Morse v. Frederick (better known as the “Bong Hits 4 Jesus” student free speech case). Alex’s articles have appeared in the American University Law Review (Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton), the Harvard Journal of Law and Public Policy (Why Is Congress Still Regulating Noncommercial Activity?), the University of Chicago Legal Forum (forthcoming 2010), and the William & Mary Bill of Rights Journal (Making Sense of Facial and As-Applied Challenges) (forthcoming 2010). He is actively involved in the community and currently serves as Chair of the City of San Diego’s Medical Marijuana Task Force and as a member of the board of the San Diego Lawyer Chapter of the American Constitution Society.

  November 2, 2009 at 8:19 am   Posted in: Uncategorized   Print This Post   One Comment

UCLA Law Review 57:1 (October)

posted by UCLA Law Review

Volume 57, Issue 1 (October 2009)

Articles

From Privacy To Liberty: The Fourth Amendment After Lawrence	Thomas P. Crocker	1
Who Can Sue Over Government Surveillance?	Scott Michelman	71
Leverage in the Board Room: The Unsung Influence of Private Lenders in Corporate Governance	Frederick Tung	115

Essay

After the Bailout: Regulating Systemic Moral Hazard

Karl S. Okamoto

183

Comments

Evaluating The Public Interest: Regulation Of Industrial Hemp Under The Controlled Substances Act	Christine A. Kolosov	237
Improving The Education Of California’s Juvenile Offenders: An Alternative To Consent Decrees	Stefanie Low	275
The Right to Control One’s Name	Julia Shear Kushner	313

Discourse

Getting the Framers Wrong: A Response to Professor Geoffrey Stone	Samuel Calhoun
The Perils of Religious Passion: A Response to Professor Samuel Calhoun	Geoffrey Stone

Th UCLA Law Review is also pleased to announce the launch of a our new website.

  October 30, 2009 at 4:21 pm   Posted in: Civil Rights, Constitutional Law, Corporate Law, Law Rev (UCLA), Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Uncategorized   Print This Post   2 Comments

Ebook Readers and the Life of Legal Academia

posted by Nate Oman

I sometimes think that my life is dominated by paper, binder clips, and redwells. Being an academic necessarily means that I read a lot of article, and having a blind hatred of reading articles on a computer screen, this means that I print them out. The result is that I am constantly surrounded by stacks of paper, and on a recent trip to Chicago I was reminded of how inconvenient paper can be as I schlepped a heavy bag stuffed with article-containing redwells through the airport. My wife has also repeatedly complained about the binder clips that often litter the house.

I am not particularly enamored by the idea of ebooks. I like the feel of paper and binding. Indeed, I have fairly strong opinions about such things and will pay extra money to get an edition of a book in the physical format that I enjoy. I am still convinced that my early attraction to the law came from my fascination with the row upon row of calf-skin-bound reporters. Nevertheless, I am considering buying an ebook reader on which I can download PDF versions of papers from SSRN, Hein-Online, JSTOR, and the like to read. I am hoping that some of the more gadget-inclined of Co-Op’s readers can give some advice. My understanding is that the Kindle locks you into Amazon’s proprietary world. However, I think that the Sony readers allow you to read PDFs and other formats. Has anyone tried to run their SSRN addiction through a Sony reader? What is the reading experience like for PDF files? Are casebooks available in ebook format? (Class prep on a plane without lugging a doorstop-sized case book is appealing.)

Given that I will spend much of next semester on an airplane between Ithaca and Williamsburg, I’d like to eliminate paper as much as possible from my consumption of scholarship. Is this possible?

  October 30, 2009 at 10:11 am   Posted in: Uncategorized   Print This Post   12 Comments

Summer Programs in China and Croatia

posted by Gerard Magliocca

I’m the co-director of the China Summer Law Program at Indiana University School of Law — Indianapolis, and I want to make a pitch to students who might be interested in China or in our other summer  program in Croatia.  The China course is held at Renmin University in Beijing and runs from the third week of May until the third week of June.  We offer an overview of Chinese law taught by the faculty that focuses mostly on commercial subjects but also covers criminal and public law.  Learning about a legal system that is still under construction is fascinating, as is living in China and interacting with Chinese law students.  The Croatia program is held in Dubrovnik (a sun-splashed city on the Adriatic) from late June until mid-July and concentrates on Central and Eastern European law.

The link to the information on the China program is here.  The Croatia link is here.  They are both exciting opportunities and I hope you’ll consider applying.

  October 27, 2009 at 8:56 am   Posted in: Uncategorized   Print This Post   No Comments

When Joining Forces Spells Trouble: Proposed Merger of E-Voting Companies

posted by Danielle Citron

Last month, Diebold announced that ES&S would purchase its e-voting business for $5 million plus some outstanding revenue.  Diebold’s shareholders no doubt rejoiced: while the company’s ATM machines have a strong reputation, its e-voting machines brought the company only grief.  Diebold even changed its e-voting unit’s name to Premier to protect the company’s otherwise strong brand name.

This merger, however, is bad news for voters.  It would entrust 3/4s of e-voting machines into the hands of a company whose machines rival Diebold’s for inaccuracy and insecurity.  Consider this recent example.  In 2008, ES&S machines allocated votes cast in one race to a different race that was not even on the ballot.  As a result, the wrong candidate won a state House nomination race.  Given the consolidation of the e-voting market, we can have little hope that future machines will be more secure.  Ed Felten explains that  “[t]he odds of one major e-voting company breaking from the pack and embracing up-to-date security engineering are now even slimmer than before.”  Because breaking into the e-voting business is expensive due to high accreditation costs, ES&S may face limp competition in bids for upcoming contracts.  Voting administrators thus may be unable to obtain important terms crucial to transparency and accountability, such as the placement of source code in escrow.

Although voters should lament this development, all isn’t lost.  As Joe Hall notes,  California Secretary of State Debra Bowen has provided wise advice to the Election Assistance Commission with regard to the integrity of e-voting systems.  Bowen urges that the EAC require greater disclosure of vulnerabilities, the adoption of procedures that jurisdictions can follow to collect and report data about incidents they experience with their voting systems, and the systematic collection of data from election officials about how voting systems perform during general elections.  This recalls the important work of Heather Gerken in her book The Democracy Index: Why Our Election System is Failing and How to Fix It.  The EAC would be wise to adopt these proposals, especially in light of the upcoming merger.

  October 24, 2009 at 2:17 pm   Posted in: Administrative Law, Architecture, Current Events, Technology, Uncategorized   Print This Post   One Comment

Signing off

posted by John Ip

The semester has just concluded at my institution. The end of classes is always a bit of a relief, although it also means that grading is just around the corner. So, alas, it’s time to swap blogging for grading papers and exams. I’ve enjoyed my guest stint, and I’d like to thank everyone here at Concurring Opinions, and particularly Dan Solove for inviting me.

  October 23, 2009 at 4:36 pm   Posted in: Uncategorized   Print This Post   One Comment

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