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Using Lawsuits to Unmask Anonymous Bloggers

anonymity-1a.jpgAn interesting recently-filed lawsuit raises the issue of whether a company can file a lawsuit just to find out the identity of an anonymous blogger in order to fire him.

The case involves an employee of Allegheny Energy Service who posted an anonymous comment to a Yahoo! message board devoted to his company. He made the posting from his home computer. In the post, he attacked the company’s management as well as the company’s diversity program, using a racial slur in the process.

The company filed a “John Doe” lawsuit against the anonymous blogger for a tort claim of “breach of fiduciary duty and breach of duty of loyalty.” The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent “John Doe” from posting more messages. It claimed that Doe’s posting violated the company’s anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee’s identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

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10

What Next, Google Filmstrips?

I use audio-visual materials pretty extensively in my intellectual property classes, but I never thought to use them for my first-year property class. That is, until this year.

Google Maps and Google Images have made it possible to illustrate property disputes in a way I never could have before. Take, for example, the classic case, Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., involving two hotels on Miami Beach. The Fontainebleau starts building a 14-storey addition which will cast a shadow over the neighboring Eden Roc’s pool and beach area.

Here’s a picture from Google Maps, showing the shadow (imagine the shadow slowly moving clockwise as the sun crosses the sky, eventually covering the Eden Roc’s pool area):

fontaine3.jpg

On the continuation page, you can also see a picture from a different perspective.

Every year, it seems I rely more and more on some kind of tool created by Google (whether Search, GMail, Images, Maps, whatever). Yet another sign that Google is taking over the world.

UPDATE: I should note that credit for finding the above picture goes to the very tech-savvy Michelle Kanter, BCLS class of ’08.

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3

When Alito Is Unbound: On Mining Judge Alito’s Judicial Record

handcuffs1.jpgAll eyes are now scrutinizing Judge Alito’s judicial record. His opinions are being mined for clues about where he stands on many key issues. The University of Michigan Law Library, for example, has posted an extensive collection of Alito’s opinions. But I’m wondering how much weight we should give an appellate court judge’s prior opinions in assessing what kind of Supreme Court justice her or she will be.

Court of appeals judges often sit in a very constrained position. They are constrained by the findings of fact and the issues raised on appeal at the district court level. They are also constrained by the precedent of their own court as well as that of the Supreme Court.

Following precedent by a higher court (and especially the Supreme Court) is a foremost imperative for appellate court judges. If they don’t, they’ll either be slapped down by the Supreme Court, and they will be viewed as lawless and derelict in the legal community.

But when a judge is transformed to justice, all of a sudden Supreme Court precedent becomes much less sacred. Justices can bend and twist the precedent; they can overrule cases; they can radically alter the direction of the law. What happens when an appellate judge is unshackled in this way?

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2

CJR on Judge Richard Posner

posner1.jpgThis article in the Columbia Journalism Review discusses Judge Richard Posner, with a focus on some of his First Amendment cases. From the article:

Still, for every decision that hints at a rigidity in his thinking, I find an article or opinion that contradicts it. Posner confounds categorization. He’s not a water-carrier, he’s not a true ideologue, he’s not even a pure free-marketeer. He’s trying to convince us all — lawyers, students, his readers, and now journalists — that moral reasoning, idealism, and the entire messy spectrum of human feeling are all imperfect ways of ordering the law. He’s just looking for the mathematical formula to prove it.

Hat tip: Political Theory Daily Review

1

Information Privacy Law (2nd Edition)

casebook2.jpgShameless Self-Promotion Alert: Within the next week or two, the second edition of my casebook, Information Privacy Law (with Marc Rotenberg & Paul Schwartz) will be out in print. This book is a significant revision from the first edition, and it covers most topics in greater depth. Click here for the book’s website (where updates and other information are posted) and here to peruse the table of contents.

For those professors interested in adopting the book for their spring 2006 information privacy law courses, the book’s ISBN is 0735555761. To obtain a free review copy as soon as possible, contact Daniel Eckroad at Aspen Publishers via email or by calling 617-349-2937. If you have any questions about the book or the course, I’d be delighted to answer them.

For those law professor readers who have never taught a course in information privacy law before, I’ve reposted here an earlier post at PrawfsBlawg where I explain why I believe information privacy law is a rewarding course to teach.

For those of you who are interested in the book, but are not law professors, you’ll unfortunately have to shell out a small fortune to buy the book, which you can do here.

0

Leiter, Caron and Hodnicki and a Typology of Successful Academics

It has been well-reported that Brian Leiter, Paul Caron and Joe Hodnicki have teamed up to produce the latest non-USNews law school ranking data. One part of their project measures faculty quality using the proxy of the citations of the more productive members of each faculty. The list is here.

I know our legal readers are way (way) beyond rankings, so they might not actually visit the site. That would be a shame, because the trio wrote a fascinating introductory section discussing six ways in which citation studies may be distorted. The basic theme seems to be that although we would normally assume that work that is cited more often is “better” than work that isn’t, some folks’ work will get cited more often than quality alone would dictate. Those distorted writers are (to paraphrase):

1. Drudges.

2. Treatise writers.

3. Flash-in-the pans faddists.

4. The very wrong.

5. “[O]nce-productive dinosaurs.”

6. Public law scholars, constitutionalists and crits.

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2

Teaching Information Privacy Law

privacy1a.jpgThis post was originally posted on PrawfsBlawg on May 10, 2005. I have made a few small edits to this post.

For the law professor readers of this blog, especially newer professors (or professors-to-be) who are still figuring out the courses they want to teach, I thought I’d recommend information privacy law as a course you might consider teaching. (I have a casebook in the field, so this is really a thinly-disguised self-plug.)

Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you’re interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh. Lots of media attention on privacy law issues these days. Students are very interested in the topic.

2. Lively cases and fascinating issues abound. There’s barely a dull moment in the course. Every topic is interesting; there is no rule against perpetuities to cover!

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0

Horwitz on Sensitive Corporate Judges

Over at Prawfs, Paul Horwitz has been trying to get some precision on what it would mean for a judge to be “sensitive” to business interests.

Here is a taste:

If I were writing opinions in these [employment discrimination cases] that were “sensitive” to business, I would fully acknowledge that employees may use Title VII to try to turn garden-variety dismissals, demotions, etc. into discrimination cases, in the hope that the corporate defendant will settle after protracted litigation, and that this may ultimately drive down the incentive to hire; that class actions similarly attempt to induce settlement and may discourage innovation; and that consumer arbitration clauses are one way to efficiently channel disputes without the significant burden of litigation. But I might also “sensitively” acknowledge that proferring legitimate nondiscriminatory reasons is hardly the same thing as proving a dismissal was not, in fact, motivated by discrimination; that courts may be so tough on Title VII cases in part because they are caseload-driven; that businesses do in fact sometimes commit mass torts, and may even (at least until recently) collude in settlements that primarily serve the interests of the corporate defendant and plaintiffs’ counsel; that businesses may prefer arbitration because they think it ups their chances of success, particularly before repeat-player arbitrators, and deters consumers from pursuing their claims; and that there may be something qualitatively different between a commercial business contract and a boilerplate arbitration clause in a consumer or employment agreement. In short, I don’t know at first blush whether the corporate interest would win or lose; but I would be “sensitive” about the issues faced by business. So it doesn’t seem to me that a pro-business record of judicial rulings really tells us anything about whether that judge is sensitive to business interests. He may simply be insensitively supportive of them.

Go ahead and read the whole thing.

2

Law Professors and Consulting

A question for lawprofs out there: what role, if any, does consulting play in your life as a professor? My sense is that lawprofs have widely diverging experiences on this score, and I’d be interested in hearing about some of them.

Because of the whole tenure-thing, I’ve made very little time for consulting. Yet on a couple of occasions, I’ve helped out on litigation raising interesting issues in my area of expertise. And those experiences have, on the whole, been extremely positive, informing my understanding of these areas in important ways (and sometimes helping to pay the bills, to boot).

Yet this has largely been the result of happenstance, without any concrete plan. Do other folks approach this more systematically? What considerations go into deciding whether to consult? Do you view consulting as an integral part of your research agenda? Or more like a side-activity?

1

Who Pays for the Law?

A couple of posts discussing the Google Print case have mentioned how they see it as an opportunity to get a court decision clarifying the scope of fair use on line. This makes me wonder: is there a public goods problem with respect to fair use law itself?

Fair use is notoriously fuzzy. Judicial opinions reduce the fuzziness somewhat by providing additional data points. These opinions benefit a wide range of parties by providing them with more guidance. Yet the cost of producing a ruling is borne largely by the private parties engaging in the litigation. So, in theory, will the existing system under-produce fair use law?

Perhaps it’s not meaningful to talk about an “optimal” level of legal guidance. But it remains the case that: (a) many potential fair users (particularly small-scale users) operate with insufficient guidance about what constitutes fair use; and (b) these folks are dependent upon large companies like Google being willing to litigate these (or analogous) issues to a decision.

So, if we want more clarity regarding the scope of fair use, how do we best produce it? Should we somehow subsidize fair use litigation (for example, by fee-shifting)? Or should we rely on a regulatory mechanism, like fair use regulations promulgated by the copyright office? (Michael Carroll of Villanova has a very interesting draft, proposing an administrative solution). Or are we comfortable with the existing level of guidance?

I assume this issue is not unique to copyright, and would be interested to find out whether other areas of the law have adopted responses to this.