Teaching Away the Right to Privacy

I’ve never liked the Supreme Court’s Vernonia School District line of cases. These decisions authorize public schools to do random drug testing of students participating in extracurricular activities, without the slightest suspicion that the children ever used drugs. You don’t want to be tested for drugs? Don’t do extra-curriculars. Of course, extra-curricular activities are important in many ways, not least in terms of college applications. For many kids, then, there is little choice but to submit to these searches.

Schools seem to have taken up the Court’s offer. I haven’t found hard data on the number of schools using random drug tests but locally – in the Birmingham area – I know the “top three” school districts (judged by test scores and affluence) have such programs. (And two of the three test for tobacco use, in addition to drugs and booze.)

Why don’t I like these schemes? A few reasons. The first one is related to the right of privacy. I don’t think the government should be in the business of searching people in any fashion – let alone sorting through their urine – without suspicion of misconduct. Although I’m not fond of other suspicionless searches the Court has authorized – for example, railroad employess may be tested after a rail accident – at least these testing programs have a narrower scope. Any policy that samples every child in extra-curricular activities – that is, the vast majority of students in these high powered schools – comes awfully close to imposing universal testing.

There are other reasons I don’t like these policies. I think they reflect outsourcing of parental responsibility. You want to test your kid for drugs? Go ahead. But it’s inappropriate for a school to impose these intrusions on all children, including those whose parents don’t buy into a surveillance-as-parenting approach. (Parents can decline to have their kids tested, in most districts, but the children still don’t get to be on the debate team.) I’m also not confident that random testing works – though I’m less certain on this point.

Watching the privacy debates of the last few weeks – domestic spying, Google subpoenas, etc – I’ve come upon yet another reason to dislike Vernonia. I suspect that suspicionless testing programs train children to believe they don’t have a right to personal privacy.

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Families, Corporations, and the Blackberry

BlackBerry.gif11D has an interesting post on the pressure that her husband has been getting to carry a Blackberry around with him and go to the bar with the “team” from work on Friday nights. 11D summarizes her anger thus:

Let me get this straight. He’s gone from the house for 60 hours per week. He sees his kids for an hour per day. And now he’s supposed to be checking his e-mail, while he watches his kid’s soccer game. The people that he spends 10 hours a day with are making him spend more time in the evening with them, so they can do jello shots and pat each other on the back for closing all those deals. As he’s pounding shots and head butting the other guys, the kids and I are supposed to amuse ourselves.

After I processed this information, I arranged the words, words shit, fuck and damn, in all sorts of unique combinations.

As well she might. (In particular, the notion that one gets pressure to socialize with co-workers rather than going home to your family strikes me as a bit ludicrous). The pithy conclusion to her expletive studded outrage is that “Corporate life is the enemy of the modern family.”

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Blogging and profanity


As I read through Dan Markel’s thoughtful post about SSRN, over on Prawfs, I stopped and lingered over his use of the phrase “shitty first draft.” Although I have not really been conscious of this before, profanity seems largely taboo, at least within the law blogging community. Not that it’s forbidden, mind you, but blogs feel positively Southern in this respect. (People surely curse down here, but typically only in the most informal social settings.) I didn’t think about Dan’s post again until I was skimming comments to one of Eugene Volokh’s posts and witnessed Greedy Clerk get chastised for describing Alito’s selection as “a clear ‘fuck you’ choice to the Democrats.”

I must concede that my sympathies lie with the swearers. Perhaps I was a free-range child, but I grew up cursing and loving it. Then I happened upon a job in a public defender office. Let’s just that say that when it comes to the use of lewd and profane language, those proverbial sailors and truckers will have to take a number.

I fully concede that cursing is no substitute for creative word choice. But I also think that both Dan’s and Greedy Clerk’s use of profanity convey an idea with particularity.

Why is it that we’re so shy when it comes to dirty talk? I suspect that lawyers generally (excluding, for the most part, trial lawyers) are risk averse, and law profs exceptionally so. Among other things, there are tenure committees to worry about. And I suspect that more than a few law profs dream about becoming federal judges. (I am pleased to say that my own fantasy life does not feature any Article III moments.)

I’ll probably stay decent as long as I’m visiting here at Co-Op (after all, I am staying at someone else’s house!) But don’t think I won’t be swearing up a storm in my head.


Being Eugene Volokh

eugene.jpgBlogs are such a new phenomena (and perhaps such an ultimately ephemeral one) that it seems a bit odd to think about the history of blogging, but remember back to the very early days of the blogosphere when The Volokh Conspiracy was on blogspot? Well, I was recently revisiting the archives from my first blog (because — hey! — blogging is about nothing if it is not about narcissism), and I tried to follow some of the links to the old Volokh Conspiracy archives. As it turns out http://volokh.blogspot.com no longer has anything to do with The Volokh Conspiracy. Rather, it is now a blog called “The SEO Reviewer” which promises to provide readers with “the latest information regarding Search Engine Optimisation (SEO) and is a repository for Search Engine Press Releases.” One can only assume that the SEO Reviewer chose their blogspot identity as a way of maximizing their traffic by capitalizing on the efforts of Eugene and company. Was there some sort of a contract here? Is there some sort of a tort?


Gonzales’s Tortured Logic on NSA Surveillance

gonzales1a.jpgAttorney General Gozales brought out some new arguments in defense of the warrantless NSA surveillance program. He should have kept these arguments in the bag, as they are flatly wrong. For example, according to the AP:

Gonzales told his audience: “You may have heard about the provision of FISA that allows the president to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime.”

Indeed, FISA authroizes electronic surveillance more generally “for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811. But how does this justify warrantless surveillance that continued far beyond 15 days and that continues to this day? Notwithstanding whether the Authorization to Use Military Force is the equivalent to a declaration of war, this FISA provision indicates that FISA explicitly contemplated the situation the President faced and established a rule — he could engage in warrantless surveillance for 15 days. I have yet to understand how a provision that allows the President to engage in warrantless surveillance for 15 days can be used to justify indefinite warrantless surveillance. Give ‘em a nickel, and they take a dime dollar unlimited amount.

Here’s another gem:

The reasonable basis standard, said Gonzales, “is essentially the same as the traditional Fourth Amendment probable cause standard.”

Nope. The standard is entirely different. The reasonable basis standard is far lower than probable cause. This is not some esoteric fact about Fourth Amendment law, but it is basic knowledge of the law that Gonzales should know.


Are Exploding Offers So Bad?

Explosion-thumb.jpgJennifer Mnookin, at Law and Culture, has a good post about the use of exploding offers in law faculty recruiting. I agree with her fundamental points, that such offers a) aren’t very nice (though I’d take issue with her term,”outrageous”); and b) are potentially counter-productive, insofar as they may lead a candidate to accept the exploding offer but leave the school prematurely due to bad feelings.

But here’s the thing. Recruiting – professors, law clerks, engineers – is a competitive business. Despite the overall size of a given year’s hiring pool, law schools are competing over a relatively small number of canidates. And it turns out teaching candidates focus on relatively consistent features in developing their job preferences. The first and most obvious is school prestige, and the related benefits of faculty and student quality. Another important recruiting advantage, as I have suggested, is location. So what are the rest of the hoi polloi, those lower ranked or off-the-beaten-track schools, to do?

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Trump’s Net Worth


This article press release details Donald Trump’s new defamation suit against New York Times reporter Timothy L. O’Brien and Warner Books, Inc., for, saying that Trump was not a billionaire in the book The Art of Being the Donald:

The lawsuit alleges that in publishing these false statements, O’Brien and Warner deliberately chose to ignore, among other things, voluminous and comprehensive financial information that Trump made available to them prior to the publication of the book, which confirmed conclusively that Trump’s net worth is in the billions of dollars. Indeed, Forbes Magazine rigorously analyzed the very same books and records and other financial data that O’Brien and Warner chose to ignore, and concluded that Trump’s net worth conservatively is at least $2.7 billion.

What I know about the topic of Trump’s net worth comes largely from O’Brien’s NYT articles on the topic, which (not incidentally) were quite skeptical of Forbes’ approach to valuation. I also am surprised that Trump would be interested in exposing his books to public scrunity, which (presumably) O’Brien and Warner could insist on as a part of their defense. Shucks, as a plaintiff, Trump might not even be able to obtain a protective order in N.J. State Court. [Being unfamiliar with local practice, this is just a guess, but Trump’s privacy claim is weaker than it would be if he had been forced to court as a defendant.]

Nevertheless, you’ve got to give Trump style points for being willing to double-down his bets:

The lawsuit, which was filed in state court in Camden, New Jersey, seeks $2.5 billion in compensatory damages and $2.5 billion in punitive damages….



What do you get when you combine an astounding 33 female law professors and a blog? You get Feminist Law Professors, a meta-group blog that looks to be a must-read. The blog looks like it is mostly an Ann Bartow creation, but the sidebar credits include a number of very interesting names. Welcome to the blogosphere, FLP!


Going Digital: The Future of Reprints?

reprints1.jpgOne of the great things about law review articles is that you can order a batch of reprints — separately-bound copies of your article that you can send out to a list of your colleagues. I have a large and growing database of various professors, policymakers, journalists, and others who receive copies of my articles — a fact that is not without some irony, since many of these people are in the information privacy law field, and I have written extensively on the problems posed by databases. Thus, ironically, I maintain a database with one of the most extensive collections of people who criticize databases.

It is common practice among law professors to send out reprints widely, as this is a way to present one’s scholarship to others in a highly-readable format. But reprints come at a considerable cost. Recently, I got the price quote for a reprint order for a soon-to-be-published article. Under the pricing scheme, I get 40 free reprints, but that’s not nearly enough for my database, which includes hundreds of people. For 200 extra reprints, it would cost about $744 and for 400 extra it would cost $1059. Wow! I nearly had a heart attack . . . and I’m not even the one paying the bill — my school picks up the tab. Anyway, if I handed a bill for over $1000 to my dean, the keys to my office might not work the next day. Plus, there’s the cost of postage, envelopes, and stationary.

So here’s my idea. I’m thinking of moving toward a system of electronic reprints. I could send out a PDF version of the final article in an email to everybody in my database. In other words, I’d shift from being a junk mailer to a spammer. . . .

In my email, I’d include the text of the letter I would have sent to accompany the reprint, attach the article in PDF format, and possibly include a link to the final version of the paper on SSRN. I’d still order some reprints — about 50 to 100 — and offer to send hard copies of the reprints to anybody who requested them. My guess is that I’d get a few people requesting the actual reprint, but most people interested in reading the article would just print it out from the attached digital version.

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