The Law of Thanksgiving

Was thinking about the Macy’s Thanksgiving Day Parade a little earlier, and made me realize that there has yet to be a treatise on the law of parades. One of my colleagues once wrote her torts exam about large balloons escaping and causing property damage. Or, perhaps more widespread, there is that oft-cited and always chilling “Parade of Horribles.” (makes me shudder just to think about it).

Further, my co-blogger at ContractsProf, Meredith Miller, has a great post up about the law of the turkey. In fact, she facetiously claims she will be writing an entire book on the topic:

The chapter on Turkeys and Criminal Law and Process will include People v. Chafford, 2007 WL 2751878 Cal.App. 1 Dist., Sept. 1, 2007) (no longer good for at least one point of law), which raises issues of prosecutorial misconduct based on the following statements made by a prosecutor during closing arguments: “Now, reasonable doubt, I want to touch on that. Reasonable doubt was presented to you by Mr. Keller as some type of insurmountable burden. It's not. It's not only the same burden that's used in this case, it's the same burden or standard of proof that's used in every criminal court in California and in the country. People are convicted beyond a reasonable doubt every day, so it is not this great insurmountable burden. “It's built into the system that we have ... and as such, it's always used as a defense. Crime wasn't proven to you beyond a reasonable doubt. That's always a defense to any criminal case. It's kind of like you make the analogy: you can't have Thanksgiving without turkey. Well, you can't have a criminal trial without the defense being reasonable doubt. That's just the way it is. It's built right into the system. [emphasis added] * * * “Ladies and gentlemen, reasonable doubt is there for a reason. It's there to protect the innocent; it is not meant to be used as a legal loophole for the guilty. Remember that when you're discussing reasonable doubt.”

Happy T-Day everyone. Cheers!

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Evolutionary Pressures on Minds and Bodies

Corpus 2.0, a recent design project on potential human bodily evolution, has been spreading around the web. One model with a shoulder bump finds it much easier to keep her handbag steady. Other forms of "progress" include a "ridge in the nose developed for wearing glasses, ears moulded to accommodate earphones, a thumb with an extra joint for sending SMS messages more efficiently and a foot adapted to create the same posture as wearing high heels." This work struck me as a less critical version of the "future farms" and other body modifications both proposed and ridiculed at the "Design and the Elastic Mind" show at MOMA earlier this year.

While many find these particular modifications to bodily form grotesque, opposition to unfortunate evolutionary pressures on attitudes and mental habits strikes me as much less developed. That's one reason I cautioned against runaway "cognitive enhancements" in an article last year. The founder of Better Living Through Chemistry predicts that we should be happy to choose "average hedonic set point[s] of our children. . . . [so that] allelic combinations . . . .that leave their bearers predisposed to unpleasant states of consciousness . . . will be weeded out of the gene pool. . . [leading to] some form of paradise-engineering." Following Walker Percy, I think such people are actually quite useful to a world too prone to "irrational exuberance"--even if introversion is maladaptive for the introvert himself.

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Extreme Case of Automation Bias

According to cognitive systems engineering literature, human beings view automated systems as error-resistant. In other words, we trust a computer's answers, even if evidence suggests that we should doubt them. Our automation bias was on full display on Monday night when a New York man drove onto railroad tracks because his GPS told him to do so. Luckily, the man and his passengers escaped injury before the train hit his car. A Metro-North spokesperson told reporters: "You don't turn onto train tracks even if there are little voices in your head telling you to do so. If the GPS told you to drive off a cliff, would you drive off a cliff?" If this train incident and another like it nine months ago provide any guidance, the answer may tragically be yes.

Wikimedia Commons

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Our Word Cloud

Courtesy of Wordle, check out the word cloud produced by what's on our front page at the moment.

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Jury duty, revisited

What does a judge do when too few people show up for jury duty? Well, one judge sends bailiffs out into the streets to round up random passers-by and conscript them into service. Really! From the Seattle Times:

After trying the phone book and making some calls without much success, Bearden ordered Lane County sheriff's deputies to go out on a downtown Eugene street and summon citizens to immediate jury service. . .

Bearden said the jury pool may have been smaller than normal because people who have experienced domestic violence, sex abuse and child abuse personally or in their families often declare that they are unable to sit on such a case. In any event, Bearden found herself using Oregon Revised Statute 10.235(4) for the first time since becoming presiding judge six years ago.

Jury supervisor Tana Tracewell, a 25-year court employee, said she believed that it had been 20 years or more since a Lane County judge had to order on-the-spot summonses. Bearden said she looked up the statute to make sure it was still in effect.

And another snippet, from the local news:

Sgt. Doug Osborne said the potential jurors were nice about their surprise summons but not entirely convinced it was real. "I said, really you're not on camera, they're looking around to see if they're on camera and it was a joke," he said.

(Hat tip: Marc B)

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Not a Preferred Pedagogical Approach

"Professor Under Investigation for Mooning Students."

Yep, it's a real news article. And I really can't add anything that the article's title doesn't already convey, can I?

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Serving Cases On a Plate

Via Chris Colin comes a report of a recently graduated lawyer/artist from HLS, José Klein. As Colin relates the story, Jose decided to transfer magic marker depictions of cases that engaged him to dinner ware (through Make-A-Plate). He felt that "[t]hese cases become vehicles for rules to be established. But we lose sight of what's profoundly human in them, and they ultimately become abstractions . . . I think the plates are an attempt to engage the drama or the humanity, not just the rule. It's more soulful than the study of these rules." The plate to the right, for example, depicts BMW v. Gore.

Given reader interest in Supreme Court bobble-head dolls, and other artistic representations of pressing legal problems, it might be worth checking out the whole collection.

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Oops

From my alma mater, via Gawker, comes the most disturbing newspaper correction I've seen in -- um, ever.

CORRECTION: This submission misstates that one Dalai Lama admitted to having sex with hundreds of men and women while knowing that he had AIDS. Additionally, the submission misstates that many monks participated in the dismemberment of female bodies. In fact, there is no factual evidence to substantiate either of these claims. Spectator regrets the error.

Wow. I guess the philosophy is, when misstating facts, misstate big.

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. . . and I feel fine

How should the law deal with the end of the world?

A set of recent NYT articles discusses a lawsuit filed to stop the (possible) end of the world. Apparently, there is a very, very remote chance that the newest particle accelerator will create

a tiny black hole, which could eat the Earth. Or it could spit out something called a “strangelet” that would convert our planet to a shrunken dense dead lump of something called “strange matter.”

Yikes! And so there is a lawsuit seeking to enjoin use of the accelerator, at least until an environmental impact study (!) is completed. And with that, the fate of the universe suddenly rests in the hands of lawyers and judges. It sounds like a bad script that tries to marry Armageddon with Law and Order:

"Will beautiful attorney Lisa and her trusty paralegal sidekick Jake get the papers filed in time? Will cranky judge Hornblatt grant the TRO that saves the world? Find out next Friday, right after the series premiere of Survivor: Law School Edition."

And how exactly does the law analyze these sorts of claims, anyway? It strikes me that law is not particularly well-equipped to handle claims of infinite destruction. For instance:

-When can a party get a TRO to prevent an act that would cause the end of the universe?

Well, they've got to show irreparable harm. Presumably, the end of the universe is always irreparable harm.

-When does a company have to disclose the possibility of the end of the universe in its filings?

Well, if it's future or speculative information, we apply Basic v. Levinson's probability/magnitude test. The probability may be small, even infinitessimal. But the magnitude of the potential harm? Infinite. I guess you always disclose it.

(10-K's everywhere will now include the line, "There is a very, very, very small chance that something the Board does will inadvertently cause the end of the universe.")

-And how would a court apply the Hand formula, for instance, in assessing whether a party should have taken better precautions to prevent the universe from being destroyed?

Burden = Probability x Loss.

P may be low, but L is really, really high. Does this mean that parties always have a burden to take reasonable steps to prevent the end of the universe?

Probably.

But then, law typically gives damages, which are backward-looking. And if the universe has been destroyed . . . well, good luck finding a court in which to bring your claim.

Plus, all your evidence is probably destroyed.

(Image source: Wikicommons)

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Song Charts

The ELS Blog has continually demonstrated the importance of good charts to the study of law. But what about pop music? Here the "Song Charts" pool on Flickr is filling the gap. Consider the following histogramic analysis of Elvis's "Ain't Nothing But a Hound Dog" (by MShades):

M.C. Hammer is on the charts as well. Here's the full pool; I'm putting some Creative Commons licensed ones below the fold.

Billy Ocean's Going Gets Tough:

Billy Joel's heartrending Piano Man:

And, of course, The Cure.

Hat Tip: weather pattern.

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PainStation: A Clockwork Lemon?

I've previously covered technological and legal responses to the ever-increasing cell phone din. Now some inventive designers are imagining new scenarios for noise control. For example, Social Mobile 5 (SoMo5) "launches sound bombs into other people's annoying conversations." Authorities may outfit repeat offenders with SoMo1, which "delivers an electric shock whose intensity varies depending on how loudly the person at the other end of the line is speaking." (Be sure to check out the online video. I wonder if they'll submit it to future rulemakings on the issue?)

When I saw these darkly fanciful ideas on display at the Museum of Modern Art's show Design and the Elastic Mind, I immediately connected them to another part of the exhibit: the PainStation, which would raise the stakes of videogaming by making players' left hands suffer "heat, electric shocks, or a quick whipping" after mistakes.

These ideas reminded me of a great Dan Burk article title: A Clockwork Lemon. I doubt they'll be built, but they subversively suggest the way individuals may move from reluctantly submitting to technologies of control to expecting them. As Julian Dibbell noted in his book on Chinese "gold farmers" (individuals who perform repetitive tasks in online games in order to sell game points to wealthier purchasers), some of the gold farmers would relax after 84-hour weeks of game playing by . . . playing more games.

I suppose on some libertarian angle we should celebrate this merger of freedom and necessity in the future. The glittering, perfectly designed interfaces at MOMA suggest as much. But the occasional project highlighted the darker side of technologies of control, and the "future farms" that the spontaneous order of the market will inspire. I'll describe those more in a bit.

Photo Credit: wallyg, photo of Umberto Boccioni's Unique Forms of Continuity in Space.

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Strangest Law Review Story Ever

Law review submission season is upon us, and accordingly, I have a bit of advice to law review editors: If you wish to make an offer of publication to an author, inform him or her of the fact. This makes things less awkward. Trust me, I speak from experience.

Last year I submitted a manuscript to a number of journals, but not getting the sort of interest I had hoped for, ultimately decided to revise it and see if I could get it placed in a more speciality, peer-reviewed journal. Fast forward several months, and I get a very odd email from the editors of one journal. The email contained the edited and subcited version of my manuscript. Students had clearly been busily at work on the piece. The odd thing, however, was that this was my first contact from the journal. I had no idea that they were even considering the manuscript, let alone that they wanted to publish it and were already well into the editing process. I had certainly never received an offer of publication, let alone accepted it. Some of my colleagues, with whom I discussed the situation, initially suggested that perhaps this was a new strategy on the part of law journals. Constructive acceptance they called it. Others wondered if perhaps the editors were setting themselves up for an unjust enrichment claim if I refused to publish with them. (I am pretty sure that I would be protected by the officious intermeddler doctrine.) Eventually, I got the situation hashed out with the current editor-in-chief of the journal. It seems that the previous editorial board had decided they wanted the manuscript, and had informed the incoming board that it had been accepted. They failed, however, to tell the new board that the author (me) had not actually been contacted with an offer. The new board set diligently to work, and then sent me the results of their labor. Alas, at this point my plans for this manuscript have moved on, and I refused the journal's offer of publication (which is how I chose to construe the edited version of the manuscript that they sent me).

So, incoming boards, make sure that there aren't any loose ends left dangling by your predecessors, and make sure that you always inform authors of your intent to publish before you start editing.

Posted by oman at 11:51 AM | Comments (10) | TrackBack

A Place for Paranoia

Looking for a way to rationalize your suspicions about the odd-looking guy you always see at the airport? Anxious to justify your worries about the stains on that backpack sitting in the hallway? Look no further. Paranoia has a new home page.

And for those obsessed with the imminent invasion of illegal immigrants in black helicopters, there's a place for you as well!

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Best Law Review Article Sentence Ever

I promise that I am going to put up a real, substantive post soon, but I just came across the Best Law Review Article Sentence Ever:

For no human orifice was safe from the assaults of Victorian medical science, and vast ingenuity was expended in perfecting suitable instruments, or even mechanisms for storing them in serried ranks, ready for instant use, such as Reynolds Enema Rack, whose virtues were extolled in the Lancet in 1892.

from A.W.B. Simpson, "Quackery and Contract Law: The Case of the Carbolic Smoke Ball," 14 J. Leg. Stud. 345 (1985). It is a testament to my current levels of stress and sleep deprivation that this sentence made my week.

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I'm Sorry... Sincerely, The IRS

Today, the New York Times reports, the National Taxpayer Advocate delivered her annual report to Congress. First established in 1998, the Taxpayer Advocate Service describes itself as "an independent organization within the IRS that assists taxpayers who are experiencing economic harm, who are seeking help in resolving tax problems that have not been resolved through normal channels, or who believe that an IRS system or procedure is not working as it should." Judging by the generous use of exclamation points on its home page, moreover, the Service would appear to be quite excited about this mission.

Among other things, I was struck by certain aspects of the IRS' present-day operations that the annual report critiques. I hadn't realized, for example, that the IRS makes widespread - if ineffectual - use of private debt collectors, or that it charges (sometimes substantial) fees to respond to taxpayer inquiries.

Two reform proposals in the annual report, however, particularly caught my eye:

First, there is the Advocate's proposal to adopt a new taxpayer bill of rights - an odd-seeming concept, to begin with. (Isn't the Administrative Procedure Act the "bill of rights" of the modern administrative state?) This bill of rights, moreover, would include a list of taxpayer "responsibilites," including requirements that they (in the Times' words) "conduct themselves honestly and [] cooperate with auditors and tax collectors." But what exactly is the "honest conduct" the Advocate has in mind? Avoiding fraudulent statements to the IRS? Surely, we've already got that covered. What's other honest conduct might be expected? Some general promise of good and clean living?

Even more eye-catching were the report's proposed "Apology Payments," to be doled out by the Advocate's office - in amounts ranging from $100 to $1,000, and up to a collective cap of $1 million - to taxpayers who suffer "excessive expense or undue burden" because of IRS error or delay. Leaving aside the procedural complexities of such a scheme, are there analogous arrangements to be found in other areas of law? (The Times reports that the U.K. and Australia already have such a scheme in their tax code.) Do we do it anywhere else?

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The Singing Contracts Prof

Things that I as of yet lack the confidence to do in my classroom. (And as a bonus, there is a longer version.)

Needless to say, however, I think that NPR has demonstrated its utter lack of insight by suggesting that contracts is tedious.

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Who Is Frank Pasquale?

You know him as Frank Pasquale, as he blogs here occasionally regularly frequently like a madman on steroids, but who is he really?

You might not know that Frank Pasquale recently won a victory in a court case in Texas, In re Does 1-10, -- S.W.3d --, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007):

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributer John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog as fac-p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital.

As Frank mentioned earlier, this other Frank Pasquale is his "purloined persona." Several others commented on the fake Frank and the lawsuit in question. For example, Professor Bill McGeveran wrote:

A Blogger page called “The Paris Site” (cute pun) is a detailed gripe site about the local hospital in Paris, Texas and its parent company, Essent Healthcare. According to this news story in the local Paris paper, Essent has sued the anonymous bloggers behind the site for defamation, alleging that the site suggests the hospital is culpable for Medicare fraud and other wrongdoing. The blogger(s) use various pseudonyms, including, at one point, “Frank Pasquale.” The state court judge in the case has ordered a local ISP to provide the real name and address of the site’s proprietor.

This sort of thing occurs fairly frequently online. On political blogs you often see commenters signing the name of elected officials, usually to parody them by making sarcastic or ridiculous remarks in their name. You also see it all the time on sites like AutoAdmit/XOXOHTH, where part of the style of so-called joke is to use other people’s names (or screen names) and turn them into sock puppets. If obvious enough as humor, those may or may not be misleading, but I have little doubt that this sort of impersonation also happens in many contexts that are outright deceptive.

See also this post by Ruchira Paul.

In the lawsuit, John Doe aka "Frank Pasquale" prevailed, with the court declaring the importance of protecting the First Amendment rights of anonymous speakers. The court adopted the approach in Doe v. Cahill,, 884 A.2d 451 (Del.2005), an approach that I believe is the best. I blogged about Cahill here. According to the court:

The cases that have decided this issue range from placing an extremely light burden (indeed, virtually no burden at all) on the plaintiff, to requiring the plaintiff to tender proof of its allegations that would survive a summary judgment, or even more stringent requirements. At least one case has essentially concluded that the mere allegation of libel is sufficient. Other cases have articulated requirements that are so weak as to essentially require no more than allegations made in good faith (or not in bad faith), with some evidence to support the allegations.

We cannot agree that either of these formulations is sufficient to survive any form of constitutional balancing. Thus, the question becomes the degree of actual proof that must be provided before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger.

We find ourselves more in alignment with the formulations set out in Cahill, 884 A.2d at 458-61. . . . The court in Cahill described the test as: “[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” Cahill, 884 A.2d at 460. This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment.

The court remanded the case to the trial court to determine if the hospital could meet this standard. I am pleased that the court followed Cahill, and I'm doubly pleased because the court cited me in its opinion -- my article A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere, 84 Wash. U. L. Rev. 1195 (2006).

The only downside in all this is that the mystery remains: Who is Frank Pasquale? For now, we'll have to continue to wait and wonder.

Posted by Daniel Solove at 12:05 AM | Comments (2) | TrackBack

Breaking Up: From Face-to-Face to Facebook

In my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, I write about how members of the current generation -- what I call "Generation Google" -- are increasingly spreading gossip and rumors about their private lives online. Some people have few inhibitions, especially one woman who decided to break up with her boyfriend by posting it on Facebook.

From Valleywag:

Can't a girl publicly humiliate her boyfriend by dumping him via her Facebook status message anymore without getting harrassed by a horde of social news readers? Nope. New York videoblogger Sandra [lastname] tried to get away with it. The image above got over 1,600 votes on Digg.

On Digg, there are scores of comments attacking the woman.

Over at Wired's Underwire blog, Jenna Wortham writes:

Since the story hit Digg on Dec. 4, the count (at the time of posting) clocks in at 1,878 Diggs and 482 comments. In addition to an onslaught of scathingly harsh comments denouncing "her" actions, a litany of low blows were slung, mocking her looks and ridiculing any bit of personal information scavenged from the web, adding up to the thinly veiled conclusion: The crowd agrees that Sandra [lastname] got exactly what she deserved. If the real Sandra [lastname] is indeed suffering at the expense of a jilted lover or a Punk'd-style prank gone horribly awry, one has to wonder at the long-term ramifications of this alleged hack and subsequent Digg-villification. Will future friends, boyfriends and employers remember this murky quagmire and steer clear?

One blog refers to the breakup as "Dumping 2.0."

Meanwhile, it's time for Facebook to snap into action with the appropriate Social Ad.

Hat tip: Guilherme Roschke

Posted by Daniel Solove at 02:57 PM | Comments (0) | TrackBack

Saving the planet via polygamy

There's a really bizarre article in today's Washington Post. Under the title, "Divorce Found to Harm the Environment," the article states:

Divorce is not just a family matter. It exacts a serious toll on the environment by boosting the energy and water consumption of those who used to live together, according to a study by two Michigan State University researchers.

The analysis found that cohabiting couples and families around the globe use resources more efficiently than households that have split up. The researchers calculated that in 2005, divorced American households used between 42 and 61 percent more resources per person than before they separated, spending 46 percent more per person on electricity and 56 percent more on water. . . .

Married households use energy and water more efficiently than divorced ones because they share these resources -- including lighting and heating -- among more people, said Jianguo Liu, one of the paper's co-authors. Moreover, the divorced households they surveyed between 1998 and 2002 used up more space, occupying between 33 and 95 percent more rooms per person than in married households.

This is certainly a novel use of statistics, and likely to see much use in intra-family discussions this holiday season. I foresee the use of this statistic as another arrow in the quiver of passive-aggressive matchmaking parents everywhere. ("I don't see why George can't just find a nice girl, settle down, and save the environment.") But really, the stats seem to prove too much, don't they?

First, the environmental loss or gain isn't really coming from marriage, is it? It's coming from shared use of resources. And two people don't have to be married to share resources. Unmarried cohabitation would have exactly the same environmental impact due to shared resource use. It won't just be parents citing this article over Christmas dinner. "I know you're mad that Cindy moved in with me, Mom -- but we're only doing it to help save the planet."

And second, if two-people-cohabitating really creates such great environmental impact -- why stop at two? The benefits of shared resource use can be expanded to greater heights, can't they?

For one thing, this is an incentive for families to keep their kids longer. There will be no more nagging at little Junior to go get his own place now that he's 35. Let's keep him in his old room, and save the planet.

But wait, there's more! What about polygamy? Now you're talking real resource savings. Think Big Love<, or perhaps Brigham Young and 56 wives. That's not just 56 wives -- that's 56 times a 40% reduction in water and electricity use. Wowzers! You may see a problematic patriarchal family system, but I see forward-looking, responsible use of scarce environmental resources.

Of course, removing 56 women from the marriage market skews the gender balance of the dating pool -- so we would need a reverse-Brigham as well, a woman who lived polyandrously with 56 husbands. And viola -- even more resources saved! You never knew it, but what's really destroying the environment these days is monogamy.

I hope Mitt Romney includes this discussion in his speech on Thursday.

Posted by Kaimipono at 03:46 PM | Comments (2) | TrackBack

Yoshida Battles the Pink Jellyfish

The WSJ has a great story on a jellyfish invasion in Japanese waters:

Fisherman Ryoichi Yoshida pulled in his nets before dawn one morning, hoping for lots of yellowtail and mackerel. But the fish were overwhelmed by a heaving mass of living pink slime. The creatures, called Nomura jellyfish, can measure six feet across and weigh up to about 450 pounds.

Fish poisoned by jellyfish tentacles die with their mouths agape. That mars their appearance and reduces their value by as much as 20%. "When their mouths are wide open, it means they've died going, 'I'm in pain! I'm in pain!' " explains Mr. Yoshida.

The jellyfish could lead to an international incident--either over Chinese industrialization, or global warming:

[A] computer model of ocean currents suggests the jellyfish are breeding off the Chinese coast near the mouth of the Yangtze River. One theory is that pollution, perhaps linked to industrialization in China, is helping create more algae in the sea. The algae are food for plankton, which is food for jellyfish. . . . [But the] dean of the Ocean University of China [says] "Floating jellyfish are mostly in the Sea of Japan....That's Japan and Korea's problem."

One fear among scientists is that the creatures are multiplying in a "jellyfish spiral." Shinichi Uye, a leading jellyfish researcher at Hiroshima University in western Japan, thinks overfishing off China has led to fewer plankton-eating fish, leaving more plankton for the jellyfish to suck up. This growing army of jellyfish then also eats fish eggs, resulting in even fewer fish.

If China is helping to generate giant pink jellyfish, it will be interesting to see if any international body can do anything to control the problem. On the other hand, the new popularity of "vanilla-and-jellyfish ice cream" shows that the industrious can turn even the most noxious pests into a blessing in disguise.

Photo Credit: Flaming Lips, Yoshimi Battles the Pink Robots.

Posted by Frank_Pasquale at 08:57 PM | Comments (2) | TrackBack

What Does It Take For a Judge to Jail 46 People in His Courtroom?

From CNN comes this bizarre story of a judge in Niagara Falls who had 46 people in his courtroom thrown into jail. Why? A cell phone rang and interrupted his court proceedings:

A judge in Niagara Falls, New York, has apologized for jailing nearly four dozen people over a ringing mobile phone in his courtroom, his attorney said Wednesday.

In removing City Court Judge Robert Restaino from office Tuesday, the state Commission on Judicial Conduct called his decision to lock up 46 people after no one claimed ownership of the phone "a gross deviation from the proper role of a judge." . . .

"We conclude that respondent's behavior ... warrants the sanction of removal, notwithstanding his previously unblemished record on the bench and the testimony as to his character and reputation," the panel ruled.

According to the commission report, Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.

About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. When no one admitted to owning the phone, Restaino heard the remaining cases and then recalled the cases of defendants who had already been released to question them about the phone, according to the commission report.

After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.

According to the report, Restaino decided to release defendants only after learning reporters were inquiring about their incarceration.

I guess inconsiderate cell phone man has met his match.

Posted by Daniel Solove at 12:08 AM | Comments (2) | TrackBack

The World's Most Expensive Dessert and How to Get into the Guinness Book of World Records

From Reuters comes this story about the world's most expensive sundae:

A day after New York City came up with a $1,000 bagel, a local restaurateur unveiled a $25,000 chocolate sundae on Wednesday, setting a Guinness world record for the most expensive dessert.

Stephen Bruce, owner of Serendipity 3, partnered with luxury jeweler Euphoria New York to create the "Frozen Haute Chocolate," a blend of 28 cocoas, including 14 of the most expensive and exotic from around the globe.

The dessert, spelled with two Rs, is infused with 5 grams (0.2 ounces) of edible 23-karat gold and served in a goblet lined with edible gold. At the base of the goblet is an 18-karat gold bracelet with 1 carat of white diamonds.

The sundae is topped with whipped cream covered with more gold and a side of La Madeline au Truffle from Knipschildt Chocolatier, which sells for $2,600 a pound.

It is eaten with a gold spoon decorated with white and chocolate-colored diamonds, which can also be taken home.

There are many perplexing things about this story. First, what fool would actually buy this sundae? Second, is this all it takes to get into the Guinness Book of World Records?

I would like to be in the Guinness Book too, so I'm going to do Serendipity 3 one better -- I'm offering a sundae for $50,000. It consists of store-bought Edy's ice cream (3 scoops -- extra scoops will cost $10,000 more), whipped cream, and some Hershey's chocolate sauce. And you can keep the spoon too. I'll even throw in the bowl.

I really don't understand why there's any category for most-expensive anything. After all, anybody can set whatever price he or she wants, so it's quite easy to claim the award for most-expensive.

By the way, I am also selling a million-dollar hamburger. I think that this is also the world's most expensive. Wow, that's two Guinness world records in just one day!

Photo Credit: Reuters

Posted by Daniel Solove at 06:13 PM | Comments (14) | TrackBack

Has the Dollar Jumped the Shark?

Two news stories from yesterday about the intersection between entertainment and finance were sobering.

Gisele Bündchen, the world's best paid supermodel, reportedly demanded that Proctor and Gamble pay her in Euros in return for her promoting Pantene shampoo.

Jay-Z, rapper and entrepeneur, has been spotted waving Euros, instead of $100 bills, in his Blue Magic video.

Gisele's decision looks like a cool and smart economic hedge against the possibility of a continued decline in the dollar. But Jay-Z is a tastemaker, and his video may signal dark days ahead for our economic hegemony. After all, our economy rests, in part, on continued faith that the dollar will be the accepted medium of global exchange. Revealed preferences of global citizens don't lie.

Posted by hoffman at 06:10 PM | Comments (3) | TrackBack

Annals of Bulky & Charming Office Furniture

Mike Madison recently urged readers to consult a profile of Anthony Grafton, well known for his book The Footnote. It's a great tribute both to humanist learning and the old style of managing information overload:

His home office has an anachronistic feel . . .: It’s dominated by a wooden reading wheel, 6 feet tall and a couple of feet across — think of a small Ferris wheel with shelves instead of seats. It’s a replica of a device used by early modern academics, left over from an exhibition he once curated. From his seat he can rotate any one of eight shelves into view by spinning the wheel. With a tug, Grafton rotates past Greek, Latin, and Hebrew lexicons . . . .

Grafton also has this intriguing observation on the "balance of forces" within the modern university:

“The American university is classically this field of forces,” he says. “Professors are wooing students to spend their time and passion and energy on learning. Coaches are wooing them to spend their time and passion on the athletic field. The arts programs and things like [Theatre] Intime are wooing them to perform and to write and join a chorus line at Triangle.

“And that is as it should be — but if I’m going to be struggling, I can’t say, ‘Yes, let’s have a nice balance,’” he continues. “Because the coaches, believe me, are not doing that.” He adds: “I feel that we [professors] make our contribution by being fairly inelastic about what we care about, which is the intellectual part of the University.”

And here's one last charming aspect of Grafton from the profile: "he grazes. . . . the most arcane corners of the blogosphere." You're a welcome reader here any time, Prof. Grafton.

Picture Credit: Ramelli Book Wheel Model.

Posted by Frank_Pasquale at 03:02 PM | Comments (0) | TrackBack

Openness on Usefulness

The New York Times has a piece on "quirky camouflage designs" that reportedly reflect new fear over street crime in Japan. Fashion designers are making vending machine costumes for adults and mailbox ones for children. But the article quickly retreats from suggesting that anyone would actually use the devices, instead situating them in a Japanese tradition of "unuseless inventions:"

Japan produces so many unusual inventions that it even has a word for them: chindogu, or “queer tools.” The term was popularized by Kenji Kawakami, whose hundreds of intentionally impractical and humorous inventions have won him international attention as Japan’s answer to Rube Goldberg. His creations, which he calls “unuseless,” include a roll of toilet paper attached to the head for easy reach in hay fever season, and tiny mops for a cat’s feet that polish the floor as the cat prowls.

And let's not forget the hair blocker at right.

America has its own tradition of "goofy inventions," some of which made it onto one of the worst TV shows of the past decade--American Inventor. See what you think of the patentability of the "pet petter" in this YouTube clip.

Anyway, the NYT article has a nice take on the "utility" requirement in patent law. For a patent to issue, an invention has to be useful, but this is a pretty weak requirement. For example, even a faux-drink-dispenser will do. How about a vending machine costume to evade a mugging?

Mr. Kawakami said that while some of Japan’s anticrime devices might not seem practical, they were valuable because they might lead to even better ideas. “Even useless things can be useful,” he said. “The weird logic of these inventions helps us see the world in fresh ways.”

Perhaps theorists of Japanese decline should take notice!

Posted by Frank_Pasquale at 12:04 PM | Comments (0) | TrackBack

My Absolute Favorite Item for Sale on eBay.co.uk

Dan makes a strong case for you to buy a tank, but what happens if everyone buys one? You and other followers of the fad would look foolish driving something that looks like a dalek or a rusty bucket, and you wouldn't even have the uniqueness factor to offset the crime against design that you'd be driving. Much better, I think to buy a unique classic vehicle, like this one, which Nick Park has put up for sale on eBay.co.uk. Yes, for currently 6,000 British Pounds (a little over $12,000 due to the currency nosedive), you can be the proud owner of the green 1958 Austin A35 that inspired the Anti-Pesto Van in the Wallace & Gromit movie. Much better than a tank, with plenty of room for your prized marrow (changed to "Melon" in the U.S. Release), and the proceeds benefit charity, too. The only problem is, that like Dan's tank, shipping isn't included, so you have to get to Bristol to take possession of the van. I'd also assume that the steering wheel is on the right side. But I still think it's better than a tank. And cheaper, too.

Posted by Neil_Richards at 11:18 AM | Comments (0) | TrackBack

My Absolute Favorite Item for Sale on Amazon.com

From the annals of the weird comes my absolute favorite item for sale on Amazon.com.

What is it?

I'm sure you think it might be my new book, but nope, it's not. So what is it then?

Well, it is quite expensive, but it also is one of the most well-reviewed products on Amazon.com -- it has 163 reviews and counting.

This mysterious item appears after the break.

It's the JL421 Badonkadonk Land Cruiser/Tank. Yours for only $19,999.95. It weighs 1100 pounds. Sadly, no free shipping on this one.

From the product description:

The JL421 Badonkadonk is a completely unique, extremely rare land vehicle and battle tank. Designed with versatility in mind, the Donk can transport cargo or a crew of five internally or on the roof, and can be piloted from within the armored shell or from an exposed standing position through the hatch, thanks to special one-way steel mesh armor windows and a control stick that pivots up and down to allow piloting from the standing or seated positions. The interior is fully carpeted and cozy, with accent lighting and room for up to five people. A 400 watt premium sound system with PA is mounted to project sound both into the cabin and outward from behind the windows. The exterior is a steel shell with a rust patina, and features head and tail lights, turn signal lights, trim lighting, underbody lighting, fixed slats protecting the windows, and a unique industrial-strength rubberized flexible skirt that shields and protects the wheels to within an inch of the ground, while still allowing for enough flex to give clearance over bumpy and uneven terrain. Master power, ignition, all lighting, and stereo features are controlled from a single switchboard to the left of the driver, again accessible from either the seated or standing position. Standard drive is an air-cooled, 6hp Tecumseh gasoline (unleaded only) engine, with centrifugal clutch, giving the Donk a top speed of 40 mph. . . .

As I said before, the product has 163 reviews! Here's what one reviewer had to say:

I'll admit it. Shopping for a personal tank can be a bit daunting. Many times in the past I've purchased overpriced, so-called "battle tanks", then driven them into battle only to be wrecked in ten minutes by the first blow off of some insurgents home-made morter.

But not this baby, no way. . . .

The only real negative with this tank is that it shows up on radar a little more than I like (although there is a polyresin graphite stealth model available). Also, the included spare isn't full size.

Overall, a great tank.

Another writes:

Some people have sticker shock when they see the price of the Badonkadonk, but what did they expect? A tank for the price of a Kia? Come'on! Let's be reasonable! If you were considering a Hummer, you'd have to cough up around fifty grand. Or more. This bad boy is cheap at 19K and even my Hyundai cost more than that. This is a stone bargain, make no mistake.

Read the rest of the comments -- some of them are quite funny.

And if you buy this tank, please please use my Amazon Associates link! It's only about $20,000. What are you waiting for?

Posted by Daniel Solove at 12:03 AM | Comments (3) | TrackBack

Histories of Things: What Next?

A new genre of history book seems to have become immensely popular. These books attempt to chronicle the histories of various things or objects. While some look interesting, I think they are starting to proliferate at an excessive pace. Pretty soon, there will need to be a book called A History of Historical Books About Things. Anyway, this post was prompted by a new book in this genre that I think demonstrates that it is going too far.

But first, let's start our journey elsewhere; I'll save the best for last. There are countless histories of various foods and seasonings. There's Mark Kurlansky's Salt: A World History. If a history of salt is too narrow a topic for you, you can read Jack Turner's Spice: The History of a Temptation. There's also Larry Zuckerman's The Potato: How the Humble Spud Rescued the Western World. Betty Fussell has written a history of corn called The Story of Corn. And then there's Iain Gately's Tobacco: A Cultural History of How an Exotic Plant Seduced Civilization. Mort Rosenblum has helped us better understand the olive in historical context in Olives: The Life and Lore of a Noble Fruit.

There are histories of various seafood. Mark Kurlansky has also written Big Oyster: History on the Half Shell and Cod: A Biography of the Fish That Changed the World.

Some more histories of things include Barnaby Conrad's Absinthe: History in a Bottle and Dominic Streatfeild's Cocaine: An Unauthorized Biography. There's Jewels: A Secret History by Victoria Finlay.

There are histories of wine, including Rod Phillips's A Short History of Wine and Wine: The 8,000 Year-Old Story of the Wine Trade by Thomas Pellechia. But why stop at just a history of wine? How about Charles Sullivan's Zinfandel: A History of a Grape and Its Wine? If wine isn't your drink, you can read Jessica Warner's Craze: Gin and Debauchery in an Age of Reason. And to wake up in the morning after it all, there's Coffee: A Dark History by Antony Wild or The Devil's Cup: A History of the World According to Coffee by Stewart Lee Allen or Uncommon Grounds: The History of Coffee and How It Transformed Our World by Mark Pendergrast.

For chocolate lovers, there's Sophie D. Coe and Michael D. Coe's A True History of Chocolate. It's a "true" history, not to be confused with the fictional histories. But one history of chocolate certainly wouldn't be decadent enough, so you can also read Mort Rosenblum's Chocolate: A Bittersweet Saga of Dark and Light.

There are histories of various colors: A Perfect Red : Empire, Espionage, and the Quest for the Color of Desire by Amy Butler Greenfield; Blue: The History of a Color by Michel Pastoureau; Mauve: How One Man Invented a Color That Changed the World by Simon Garfield; and Color: A Natural History of the Palette by Victoria Finlay.

What can we learn from all these books? Here are a few themes:
1. No object seems unworthy of a book devoted to its history . . . or two . . . or three. . .
2. Nearly every thing, food, object, drink, etc. changed the world or transformed civilization.

Had enough already? Well, topics for histories are running out apparently, for I just discovered one that tops them all off -- a book about the history of the toothpick: Henry Petroski's Toothpick: Technology and Culture. Petroski also wrote a history of the pencil: The Pencil: A History of Design and Circumstance.

I think that this genre is starting to grasp at straws. No . . . wait . . . I'm sure that there are books in the works entitled: The Straw: A History of the First Grasp to the Last and The Straw Man: A Biography.

Posted by Daniel Solove at 05:04 PM | Comments (12) | TrackBack

Beware the Teenie Weenie: Social Norms and Expressive Culture

I've been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I've also come across some pretty weird stuff, like this story from the German media about a children's book deal that fell through. A famous German children's book author was trying to get a book deal to publish a translated version of her illustrated children's book in the US. Unfortunately, the deal didn't happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.

We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we're really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people's decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

What's the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren't published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children's literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequentl