8

Should More Land Use Professors be Libertarians?

Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

The organization of local governments, on the surface a merely technical matter, has fallen victim to a similar pattern of what public choice scholars call “rent-seeking.” Cities look to annex neighboring unincorporated areas in order to gobble up their tax base, while affluent small areas incorporate in order to resist the redistribution of wealth to poorer neighborhoods and prevent unwanted land use sitings. Metropolitan regions have been fragmented into dozens of little local fiefdoms, each acting with little regard for its neighbors. Sprawl, inefficiency, interlocal inequality and de facto racial segregation are the consequences, and the norm, in most metropolitan regions. Read More

The Right to be Forgotten: Not an Easy Question

I’ve previously written on regulation of European data processing here. I’ll be presenting on the “right to be forgotten” (RtbF) in Chicago this Spring. I’ll be writing a series of posts here to prepare for that lecture.

Julia Powles offers an excellent summary of the right in question. As she explains, the European Court of Justice (ECJ) has ruled that, “in some circumstances—notably, where personal information online is inaccurate, inadequate, irrelevant, or excessive in relation to data-processing purposes—links should be removed from Google’s search index.” The Costeja case which led to this ruling involved Google’s prominent display of results relating to the plaintiff’s financial history.

Unfortunately, some US commentators’ views are rapidly congealing toward a reflexively rejectionist position when it comes to such regulation of search engine results–despite the Fair Credit Reporting Act’s extensive regulation of consumer reporting agencies in very similar situations. Jeffrey Toobin’s recent article mentions some of these positions. For example, Jules Polonetsky says, “The decision will go down in history as one of the most significant mistakes that Court has ever made.” I disagree, and I think the opposite result would itself have been far more troubling.

Internet regulation must recognize the power of certain dominant firms to shape impressions of individuals. Their reputational impact can be extraordinarily misleading and malicious, and the potential for harm is only growing as hacking becomes more widespread. Consider the following possibility: What if a massive theft of medical records occurs, the records are made public, and then shared virally among different websites? Are the critics of the RtbF really willing to just shrug and say, “Well, they’re true facts and the later-publishing websites weren’t in on the hack, so leave them up”? And in the case of future intimate photo hacks, do we simply let firms keep the photos available in perpetuity?
Read More

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FAN 32.2 (First Amendment News) — Upcoming Sullivan conference at University of Oregon

New York Times v. Sullivan 50 Years Later:

Celebrating a Free Speech Landmark

The University of Oregon School of Journalism and Communications is hosting a conference on the Sullivan case. The schedule for the conference is set out below:

Friday, October 3, 2014 UO School of Law (Room 175)

8-8:30 a.m.          Registration — Location: outside Room 175

8:45-9 a.m.          Opening Remark

  • Michael Moffitt, Dean and Phillip H. Knight Chair, UO School of Law

9-9:50 a.m.          Keynote Address: 

                             “The Anatomy of a Great Case: The People Behind the Precedent

  • Professor Ronald K.L. Collins, University of Washington, School of Law

9:50-10 a.m.         Break

10-10:50 a.m.        NYT v. Sullivan: Has it Withstood the Test of Time?

Moderator:            Professor Ofer Raban, University of Oregon, School of Law

Panelists:

  • Professor Stephen Wermiel, American University, Washington College of Law
  • Attorney Bruce Johnson of Davis Wright Tremain
  • Attorney Ashley Messenger, NPR and American University School of Communication

11-11:50 a.m.        Oregon Law: Things Are Different Here Read More

Enter Privacy Profession 01
1

Advice on How to Enter the Privacy Profession

Over at LinkedIn, I have a long post with advice for how law students can enter into the privacy profession.   I hope that this post can serve as a useful guide to students who want to pursue careers in privacy.

The privacy law field is growing dramatically, and demand for privacy lawyers is high.  I think that many in the academy who don’t follow privacy law, cyberlaw, or law and technology might not realize what’s going on in the field.  The field is booming.

The International Association of Privacy Professionals (IAPP), the field’s primary association, has been growing by about 30% each year.  It now has more than 17,000 members.  And this is only a subset of privacy professionals, as many privacy officials in healthcare aren’t members of IAPP and instead are members of the American Health Information Management Association (AHIMA) or the Health Care Compliance Association (HCCA).

There remains a bottleneck at the entry point to the field, but that can be overcome.  Once in the club, the opportunities are plentiful and there’s the ability to rise quickly.   I’ve been trying to push for solutions to make entry into the field easier, and this is an ongoing project of mine.

If you have students who are interested in entering the privacy law profession, please share my post with them.  I hope it will help.

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The Campus Book Tour

If you are publishing a new book–as almost all Co-Op bloggers seem to be doing, including Danielle, Frank, and me–getting the word out entails effort across mainstream media, social media, niche blogs, radio and TV, and, of course, old-fashioned book tours.  While technology and industry change have opened other media to more authors and others in the marketplace of ideas, the book tour has lost ground with the rise of ebooks and etailing and the decline of the traditional bookstore.

Into that void, however, the university is stepping. And not just for campus books like William Deresiewicz’s Educating Sheep,  in the swing of a 20-stop university based tour.  By reaching out to friends across the academy, a book tour can be fashioned to reach relevant communities. Targeting the open minds that ideally characterize university gatherings, the campus tour might even be more consequential than you could have done criss-crossing the country’s old Borders, Barnes & Noble, and Books-A-Million stores.

Thanks to the generosity of a network of professorial friends, such a book tour for Berkshire Beyond Buffett: The Enduring Value of Values, starts tomorrow at the University of Delaware. This is first in a series for a 20-stop tour, most at universities or other learned societies, as well as one in the Author at Google / You Tube series.  The banners or pennants of many of the schools appear below and a full regularly updated list can be found here. School Pennants

While what I most enjoy is preparing my lecture and then engaging in Q&A, putting the trip together also has its rewards, especially connecting with so many wonderful colleagues across so many schools.  But I know it’s a lot more work for them than me, so I want to use this blog post to shout out my deep gratitude to all those who are helping with this, listed specifically below.

For those authors now thinking about organizing a campus book tour, I should mention that it takes considerable effort, entails some frustration, and, like most everything in social life, should include a commitment to give at least as much  you hope to get in the exercise.   When I have a complete list of tips to pass on after this tour its completed, I’ll write them up in a blog post here.  For now, I can say that the wonderful people helping with this have made it thoroughly worthwhile.  Looking forward to seeing everyone on the road! Read More

2

Enumerated Powers Reconsidered

I want to flag a new paper by Richard Primus (full disclosure–my co-clerk and friend) forthcoming in Yale Law Journal.  “The Limits of Enumeration” will likely be a significant contribution to the debate on the powers of Congress that was at the heart of NFIB v. Sebelius.  Here is the Abstract:

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internal-limits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. This Article explains why setting aside the internal-limits canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.

 

2

Scottish Referendum and Evolutionarily Fit Legal Systems

Some thoughts in the aftermath of the scottish referendum.

Why do regions want to secede? To some extent, secession attempts imply a desire for different rules than the state provides. From the individual perspective, that of the individual scott, basque, or chechen, this suggests the state’s rules do not give the individual the freedom to do what the individual desires. From the collective perspective, this corresponds to the state not letting the local group determine its conduct the way that the group desires. Thus, from the individual’s perspective it is a question of freedoms and from the collective perspective it is an issue of federalism, local governance.

I’d like to think that the US does not have secessionist regions (like Scotland, the Basque country, Quebec, Catalonia, Chechnya, etc) because it has a legal system that produces enough freedom and welfare that individuals do not feel the desire to secede. This also suggests that the legal system should not be merely optimizing for welfare but for a combination of welfare and freedom (I am not forgetting equality; egalitarianism is a component of welfare). A note of optimism for the scholarly enterprise: Since we have no gauge of freedom, normative legal and economic scholarship is still scratching the surface. Read More

Interview on The Black Box Society

BBSBalkinization just published an interview on my forthcoming book, The Black Box Society. Law profs may be interested in our dialogue on methodology—particularly, what the unique role of the legal scholar is in the midst of increasing academic specialization. I’ve tried to surface several strands of inspiration for the book.

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FAN 32.1 (First Amendment News) — Cato hosts panel on First Amendment: Strossen discusses McCutcheon & history of ACLU stance

Many of us believe that [what] democracy is all about is that you vote for a candidate [and] you give money to a candidate because you want that person to share and be responsive to your concerns. That’s is not corruption; that is democracy.

Nadine Strossen, Sept. 17, 2014.

Earlier today the Cato Institute hosted a panel on the First Amendment. Here is the lineup:

Ilya Shapiro & Nadine Strossen

Ilya Shapiro & Nadine Strossen

Panel I: The First Amendment

Moderator: Ilya Shapiro
Editor-in-Chief, Cato Supreme Court Review

Nadine Strossen, Professor of Law, New York Law School

P.J. O’Rourke, H.L. Mencken Research Fellow, Cato Institute

Eric Rassbach, Deputy General Counsel, Becket Fund

Among other things, Professor Strossen said:

  • “My defense of letting money speak has, in most of my circles, caused me to be called a ‘puppet of plutocracy’ and not a champion of liberty.” [19.40-20.07]
  • “It was the ACLU that long spearheaded the fight against all of these laws, including in the 1976 landmark case of Buckley v. Valeo, in which the ACLU was both a plaintiff and co-counsel, and opposed every single aspect of the Federal Election Campaign Act.”  [21:06-21:24]
  • “Those of us who are First Amendment absolutists have been losing some ground, although I am happy to say that in contrast to former ACLU leaders, the current ACLU is very strongly opposing, and effectively opposing, the proposed constitutional amendment on this ground.” [20:39-20:57]
  • “Notably, one of the Buckley plaintiffs was Eugene McCarthy who repeatedly said he could not have mounted his historic challenge to Lyndon Johnson without very large contributions from a small handful of ‘fact cat liberals’ donors, and McCarthy could never understand how liberals could possibly support these limits in light of that experience. So, the ACLU argued in Buckley that contribution limits, as well as spending limits, violate not only free speech and association principles but also violate the very equality principles that are said to justify those limits.” [25:20-26:00]
  • “I continue to believe that invalidating contribution limits would boost democratic and egalitarian ideals as well as free speech. So, I welcome [the ruling in] McCutcheon v. FEC as a small but notable step in that direction.” [26:01-26:15]
  • “I do agree with Justice Thomas [in his McCutcheon concurrence] when he says that [the plurality opinion] is a rule lacking a rationale.” [29:53-30:17]
  • “[The Roberts Court's campaign finance] decisions have been incredibly maligned and misunderstood thanks to a lot of media distortion by media outlets that all have an unacknowledged conflict of interest because their voices are amplified by every law that restricts other voices in the campaign context.”[17:48-18:10]

Read More

8

Is there a Sexual Assault Crisis on College Campuses? Yes and No.

No matter what position you take in discussing rape and sexual assault policy, you can point to some statistic(s) to support your argument. That is largely due to the low quality and/or limited utility of a lot of data about sexual violence. If you do not have any interest in the truth, you can simply pick the statistic you prefer over the ones contrary to your narrative. If, on the other hand, you want a better sense of what is actually happening, you have to put the pieces of data in their proper context. Take, for example, the rate of sexual assault at large universities in the Figure below (based upon Clery Act reports) compared with the rate of forcible rape anywhere in the United States (based upon Uniform Crime Reports).

Figure 1

Taken at face value, you might conclude that sexual assault at large universities has rapidly increased since 2009 and forcible rape has been on a steady decline since 2001. Yet, I think the stronger evidence is that both of those claims are false. The reason that the data is likely misleading is that it relies on reports from institutions under different sets of incentives. As I wrote in my study about the UCR data, police have, based upon my analysis, increasingly been undercounting rape, in part, to meet unrealistic public pressure to continually, repeatedly decrease crime rates. As a result, there has likely been little to no decline (and a possible increase) in the rate of rape since rape rates began falling in the early 90’s.

Why wouldn’t universities have the same incentives to limit reporting of sexual assault incidents to assuage fears of potential applicants, avoid Title IX suits, and maintain a positive public image? I think the best answer is that they still have all of those reasons to undercount, but during the last couple of years another concern has trumped those incentives for a certain segment of large universities. The year 2011 is particularly important because that is when the Jerry Sandusky scandal broke. The figure below shows what happened to sexual assault reports at Penn State.

Penn State

Since 2010, according to Penn State’s Clery Act submissions, sexual assault has increased by an unbelievable 1389%. Is that because sexual assault has been increasing on campus? Almost certainly not. As part of the fallout from the Sandusky scandal and the issuance of the Freeh report, Penn State had its lax Clery Act compliance exposed. Similar spikes have happened at other large universities which account for entire increase during the last two reporting cycles. Big 10 schools, of which Penn State is one, have had the change in their collective rates of rape outpace the national average increase by nearly three times. What seems to be happening since 2011 (when the largest increase in sexual assault occurred) is that increased reporting at some schools has led to a significant spike in reported crimes. Other factors during that time frame such as increased Clery Act audits and Title IX lawsuits might have played a role as well.

So, based upon that assessment, is there a sexual assault crisis on campuses? It depends. If by “crisis” you mean an escalating problem based upon increasing rates of sexual assault, then I don’t think so. However, if by “crisis” you mean a serious ongoing problem with significant ramifications, then the best evidence supports that conclusion.