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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

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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.

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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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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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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.

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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?

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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.

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Madison on Law P0rn

Oscar Madison has been tracking the amount of law p0rn he receives. The numbers are staggering. He’s getting a pound per day of the stuff. And it’s far less titillating than the name suggests — it’s and endless stream of law-school brochures, all designed to elicit positive U.S. News responses. Madison’s (illustrated!) post mocks numerous the lunch presentation lists (all involving places he would never go). And he reserves special ire for NYU’s magazine with its “Dworkin on Dworkin” cover story.

We’ve got the solution for you, Oscar. Leave behind all that law p0rn and focus on blawg p0rn! Our brochures are much lighter than NYU’s — we promise!

Did you know that Concurring Opinions just brought in a rising star, Dave Hoffman, as a lateral addition to the blog? Or that our blawg-and-privacy center has just tripled its budget? You’re invited to a free lunch presentation tomorrow, by the way, which will be held at an undisclosed location in rural Virginia. I hope that you can make it. And even if not, perhaps you’ve got time to read this month’s highlight article, “Solove on Solove.”

[UPDATE: In the interest of avoiding drawing in people running google searches for p0rn, I've switched to misspelling the term with a zer0.]

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Blog Posts: Conversation or Publication?

book7a.jpgBlog posts exist in an uneasy position between permanent publications and more informal discussion. How ought they to be viewed when assessing a person’s reputation as a thinker and writer?

This question was inspired by a recent discussion about the propriety of deleting blog posts one strongly regrets posting. Christine Hurt (law, Marquette) at Conglomerate wrote:

[B]loggers are not just diary-keepers in pj’s but contributors to a national dialogue. Of course, journalists seek to be skeptical of this notion, and I think that suspicion is warranted if bloggers live by different rules, including the rule that any post can be deleted if the poster has a change of heart. When a television journalist says something on television, those words are recorded forever. When someone writes an op-ed for the NYT, then once the paper is printed, the op-ed is there forever.

What exactly are blog posts? Publications such as op-eds? Or just talk in an ongoing conversation? Or something of both? This issue is important because it will affect how blog posts come to be used in evaluating the blogger as a thinker and writer. That’s because we have very different standards in evaluating what people say in publications and what people say in conversations.

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Judge Alito’s Blog

alito1.jpgApparently, blogging experience seems to be one of the major factors in getting a nomination to the Supreme Court. Harriet Miers had a blog, and now (no surprise) Judge Alito has a blog too.

Hat tip: A3G. My theory: A3G is the one behind these blogs. A3G, time to fess up. . .