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The Pathology of Picking Supreme Court Justices

sct1.jpgThe Supreme Court appointment process has become almost pathological . . . ironically, for rational reasons. The incentive is for presidents to select people who are: (1) young, so they have a reign on the Court that rivals Fidel Castro’s in length; and (2) obscure, so they have rarely taken any positions on any major issues. [Sadly, the future prospects for Supreme Court appointments for bloggers are not looking good.]

The nomination of Harriet Miers has left many people guessing. We know very little about her. Mark Graber writes on Balkinization: “What both John Roberts and Harriet Miers have in common is that the administration knows a lot more about them than the rest of us.” Jack Balkin calls her a “stealth candidate.” Orin Kerr is “quite puzzled.”

We should be selecting Supreme Court justices from the most accomplished and distinguished of legal figures. Instead, being a judge for a long time almost disqualifies a person for the Supreme Court.

The Senate confirmation hearings have turned into vapid ritual, where Senators posture and bluster, and the appointee does a well-rehearsed dance to reveal as little as possible. No appointee is going to go before the Senate and say: “Well, yes, Senators, I intend to legislate from the bench. I’ll be activist. I won’t follow the Constitution. Instead, I’ll decide cases based on what I’ve had for breakfast that day. I’ll be biased and I’ll try to twist the law to conform to my personal whims.”

I hope that in the debates that follow about Harriet Miers, the focus will also include the systematic problems with the appointments process more generally.

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Psst! Can I copy from your exam?

Or rather, can Ben Barros copy from your exam? He writes:

Perhaps I could set up a list of e-mail addresses of property professors willing to share exams, and we could get in touch with each other directly. Please leave a note in the comments if you (a) would be interested in participating and (b) have any ideas on how to set things up.

I haven’t yet given any exams in property — it’s on the list of courses I will probably teach someday, but not this semester. If you have given such exams, and would like to participate in Ben’s project, let him know.

But don’t let the proctor catch you copying from each other’s exams.

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Facilitating removal of racist covenants

shelley.jpg An interesting new bill, Assembly Bill No. 394, appears well on its way to becoming law in California. AB 394 is designed to make it easier for property owners to remove racial restrictions and other illegal restrictive covenants from the titles to their property and to other property and other property within their subdivision.

Racial restrictions were declared illegal half a century ago, in Shelley vs. Kraemer. It’s not as if anyone is enforcing them today. But they remain in the titles to many pieces of property, and they serve as a painful reminder of the past. Under current law, property owners can petition to have them removed, but the process is cumbersome and time-consuming, and it affects only single parcels.

AB 394 would provide a streamlined method for removing these covenants from entire subdivisions. Seems like a reasonable idea to me.

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Registration

A few years as a securities litigator has taught me that you can’t go public without a registration statement.(1) So, without further ado, here is a registration statement for Concurring Opinions.(2)

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California’s Tougher Anti-Paparazzi Law and the First Amendment

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Recently, Governor Arnold Schwarzenegger signed a law that toughened California’s Anti-Paparazzi Act, Cal. Civ. Code §1708.8. The original act was passed in 1998 in response to Princess Diana’s death, which was caused when her car was fleeing aggressive paparazzi.

Paparazzi photos can fetch a lot of money. A photo of Princess Diana and Dodi al-Fayed sold for over $3 million.

Arnold Schwarzenegger is not stranger to paparazzi. In one instance, they chased him and his wife, Maria Shriver, off the road to take photos of him.

The Anti-Paparazzi Act creates heightened penalties when a person commits a trespass “in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.” A person can also be liable even if there is no trespass if he “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device.”

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Miers’s Political Contributions to Al Gore and Lloyd Bentsen

Harriet Miers’s

political contribution history doesn’t look surprising until you get to the

two earliest entries.  On the later entries, she gave to George Bush (R), Kay

Bailey Hutchison (R), Pete Sessions (R), and Phil Gramm (R).  But the two

earliest entries, from the late 1980s, strike me as very odd. 

MIERS, HARRIET E MS

DALLAS, TX

75219

LOCKE PURNELL RAIN HARRELL

GORE,

AL (D)

President

ALBERT GORE JR FOR PRESIDENT COMMITTEE INC

$1,000

primary

02/16/88

MIERS, HARRIET E MRS

DALLAS, TX

75201

LOCKE PURNELL ETAL

BENTSEN, LLOYD SENATOR (D)

Senate – DC

SENATOR LLOYD BENTSEN ELECTION COMMITTEE

$1,000

primary

03/30/87

Hat tip:

Larry Solum

2

The DHS Privacy Office

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Nuala O’Connor Kelly left the DHS privacy office last week. I have mixed reviews of her performance. On the good side, she did not rubber stamp DHS policies. She criticized the TSA, for example, for improperly gathering airline passenger records from Jet Blue Airlines. But on the negative side, she acted more as an internal facet of DHS than as an external overseer. Her role was more akin to an in-house privacy counsel who would advise behind the scenes than to an independent agent.

This wasn’t necessarily O’Connor Kelly’s fault. The DHS privacy office lacks essential powers, like the ability to subpoena documents. It lacks the independence to rebuff the DHS. It lacks any real teeth to enforce sanctions when the DHS violates the law. Although it produces public reports about its activities, the privacy office could do more to ensure greater public accountability for DHS, which often operates in manner that isn’t transparent.

We need a privacy agency, one that has teeth. For a good proposal for such an entity, see Robert Gellman, A Better Way to Approach Privacy Policy in the United States: Establish a Non-Regulatory Privacy Protection Board, 54 Hastings L.J. 1183 (2003). As Gellman notes: “The failure of the United States to have a national privacy agency is, perhaps, the single most important difference in approach to data protection between the United States and most other industrialized countries.”

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When Clacks Squawk: The New Keystroke Surveillance

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You thought keyboard clacking was just annoying noise. Little did you know your clacking is broadcasting what you’re typing!

Berkeley researchers have developed a way to monitor your keystrokes without installing a device into your computer. Thus, far, keystrokes can be monitored via special software or other devices installed into people’s computers (either directly or via a virus or spyware). This new technique relies on the clacking of your keyboard. According to the AP:

If spyware and key-logging software weren’t a big enough threat to privacy, researchers have figured out a way to eavesdrop on your computer simply by listening to the clicks and clacks of the keyboard.

Those seemingly random noises, when processed by a computer, were translated with up to 96 percent accuracy, according to researchers at the University of California, Berkeley.

“It’s a form of acoustical spying that should raise red flags among computer security and privacy experts,” said Doug Tygar, a Berkeley computer science professor and the study’s principal investigator.

Researchers used several 10-minute audio recordings of people typing away at their keyboards. They fed the recordings into a computer that used an algorithm to detect subtle differences in the sound as each letter is struck.

On the first run, the computer had an accuracy of about 60 percent for characters and 20 percent for words, said Li Zhuang, a Berkeley graduate student and lead author of the study. After spelling and grammar checks were deployed, the accuracy for individual letters jumped to 70 percent and words to 50 percent.

The software learned to improve as researchers repeatedly fed back the same recordings, using results of spelling and grammar checks as a gauge on correctness. In the end, it could accurately detect 96 percent of characters and 88 percent of words.