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Meat Market Ruminations

So, to all of those who are braving the Marriott today: welcome to the first step of a profession that can be personally satisfying, enriching, and challenging.  I thought I would capture a few thoughts about faculty hiring.
First, it is quite true that faculty hiring has become a bit of a pro-am conflagration, where many of the candidates that appear in the market show up with numerous significant publications and significant teaching experience to add to their already impressive credentials.  This is neither a bad thing nor a good thing, but rather a point in time where the hiring market has been unable to absorb many of those candidates in prior years into permanent tenure track position.  (We are all hoping for a turn around).  The outcome is that there are far more VAPS, Fellows, and other non-traditional academic positions that have been filled over the years, where people sit in waiting for a tenure track position. I would not be honest if I did not admit that they have a significant advantage over people who are coming out of law practice.   The presence of mentors on the host institution’s faculty, daily advice about the meat market and how to approach it, as well as time to think about how to make the best impression in a thirty minute screen are just advantages in an already competitive market.

However, even the best placed people blow it from time to time.  I recall overhearing from the hallway in the Marriott (the interview room I was going in left the room door cracked) someone in front of me say to the interview team “How do you handle teaching students who are significantly less intellectually equipped than you?”  I remember thinking — that was your one question. I don’t know what happened in that person’s case, but I can’t imagine they got the call back.  No one (and I mean NO ONE) wants to hear from someone on the outside that their students are less than adequate.  Sure we might talk about how they disappoint us in various ways.  But we never want to hear an outsider (much less someone we are interviewing to join our community) start that relationship by criticizing a major component of who we are.   Inferring that the students you propose to work with are anything other than thoughtful, astute and prepared to wow everyone they come into contact with comes off as arrogant and uninformed — after all, you probably haven’t even met a student from that school yet.

Second, personality matters way more than you think in these processes.  If you are someone that the faculty thinks it would like to have around on a daily basis, have big ideas about your area of expertise (whether its property, torts, or legal writing) and seem to be a serious, productive, and positive person, you are in the conversation.  The fact that you made it in the room signals that something on your CV made the committee think that there is something about this person that they would like to find out more about.   The best you can do is be yourself and play to your strengths.   I remember talking with someone who has become a good friend since I started teaching who had interviewed me at the Marriott several years ago.   That evening we ended up in a social setting and had a great conversation.  Since that time that person has told me that the person at the bar is someone they would have loved to get to know — the one that showed up in the room — the super serious, trying too hard candidate, not so much.  On this side, I completely see what he meant.

My last piece of advice relates to after the meat market.  Whether you land the job you want, a fellowship or just return to practice, find someone on the inside (preferably on your faculty that you are working with) to be a mentor.  Everyone can learn something from someone else.  It doesn’t matter if you are a Ph.D. that is several years older, the people in your new institution offer insights into the process and the views of faculty governance that you don’t have access to.

In short — Have fun.  Good luck.  Be you (unless you are someone that is imminently unlikable — then be someone else).

Reining in the Data Brokers

I’ve been alarmed by data brokers’ ever-expanding troves of personal information for some time. My book outlines the problem, explaining how misuse of data undermines equal opportunity. I think extant legal approaches–focusing on notice and consent–put too much of a burden on consumers. This NYT opinion piece sketches an alternate approach:

[D]ata miners, brokers and resellers have now taken creepy classification to a whole new level. They have created lists of victims of sexual assault, and lists of people with sexually transmitted diseases. Lists of people who have Alzheimer’s, dementia and AIDS. Lists of the impotent and the depressed.

***

Privacy protections in other areas of the law can and should be extended to cover consumer data. The Health Insurance Portability and Accountability Act, or Hipaa, obliges doctors and hospitals to give patients access to their records. The Fair Credit Reporting Act gives loan and job applicants, among others, a right to access, correct and annotate files maintained by credit reporting agencies.

It is time to modernize these laws by applying them to all companies that peddle sensitive personal information. If the laws cover only a narrow range of entities, they may as well be dead letters. For example, protections in Hipaa don’t govern the “health profiles” that are compiled and traded by data brokers, which can learn a great deal about our health even without access to medical records.

There’s more online, but given the space constraints, I couldn’t go into all the details that the book discloses. I hope everyone enjoys the opinion piece, and that it whets appetites for the book!

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Another in the Stop, Be A Better Lawyer Posts

With all the focus on law in alleged decline, and the ease with which we can put our heads deep into a subject, too much can pass by. That is why on occasion I post about meteor showers, eclipses, and other wondrous fun. Fun can die. Wonder can fade. When I taught professional responsibility, I always tried to remind students that the profession can be tough (just look at substance abuse and divorce rates for lawyers), but that they should try to find part of the law that excited them. One had to know that even then the fight is long and difficult, but if you love the work, much of the burden is reduced. If you are lucky, you may be able to have the joy that these science folks share in the video below. And if the career is not giving you a way to find the wonder, find it elsewhere. That too can lift you up, and you will be a better lawyer. Yes, empathy matters, and I think it grows when we remember that are humans running through life trying to make things work and maybe a bit better too.

So I give you this video. I hope deGrasse Tyson is correct that we are all connected by logic. But even if he is incorrect, as Guru Sagan says, “The beauty of a living thing is not the atoms that go into it, but the way those atoms are put together.” Enjoy.

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“Unpublished” Supreme Court Orders

Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation.  This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari.  What in blazes is going on here, they ask?  Doesn’t the Court owe us some explanation?

I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations.  One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument).  I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary.  Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.

Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception.  Right now only a dissenter can open a window into what goes on with respect to these important choices.  I’m not sure that is always good enough.

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The Leaked TPP: Some notes, and Criminal Copyright

Today Wikileaks released the latest leaked draft of the IP chapter of the Transpacific Partnership Agreement (TPP). The TPP is a plurilateral trade agreement being negotiated between select countries across the Pacific, and is the latest in a longish line of free trade agreements that address IP law in great detail.

Free trade agreement negotiations are subject to a surprising amount of secrecy, but select industry advisers have access to detailed US negotiating objectives. Today’s leaked text, dated May of 2014, allows public interest groups and the general public a chance to play catch-up to US industry advisers.

I suspect that the drafts are often leaked, or “pleaked“,  by negotiating partners seeking to activate US public interest groups more sympathetic to their negotiating positions than to the positions proffered by the US. The leaked text shows evidence that such pleaking can work: more controversial provisions from older leaked drafts, including one in direct conflict with the Supreme Court’s decision on first sale doctrine in Kirtsaeng, have been removed. And the repeated leaking raises the question of why the US doesn’t voluntarily open the process up earlier- if leaking is now so prevalent that we’re going to see what’s in the agreements anyway, why insist on the dirty haze of secrecy and keep the public one step behind?

A number of people at public interest organizations (KEI, Public Citizen) have criticized the leaked text’s patent provisions for blocking access to medicines. The text also contains extensive provisions on geographical indications, and public performance rights, each of which raise significant issues (especially performance rights in light of the controversial Ninth Circuit decision in Garcia- for more on this issue in the international context, see Jacob Victor’s just-released essay).

The leaked draft also contains language on trade secrets that could be read to require a private cause of action, and may end up being used to launder federal law in the current debates over whether the U.S. should create a federal trade secrets private cause of action.

But the portion of the draft I would like to highlight is its provisions on criminal copyright law. Criminal copyright is a large part of what got ACTA rejected in the EU. As many have noted, the United States does not have the greatest interface between its copyright law and free speech rights, thanks to Supreme Court decisions in Eldred and Golan. As a consequence, Congress has been able to legislate into existence criminal copyright law that impinges on free speech values both by defining a low level of infringement as criminal, and by employing enforcement tools (such as the seizure of websites) that restrict freedom of expression.

The leaked draft shows a fight between the US and Canada over the scope of criminal copyright infringement and enforcement. Canada wishes to clarify that countries may restrict the criminalization of infringement to truly commercial scale infringement (see fn 183), while the US, per our domestic statute (the NET Act), wishes to reach noncommercial acts. The US fought China on this exact issue at the WTO and lost, so has been using free trade agreements to try to raise the TRIPS standard. The TPP parties are evidently debating whether to include the following: “For greater certainty, “financial gain” does not obligate a Party to provide criminal procedures and penalties in cases of de minimis infringements.” My guess, given past FTA language, is that the US comes down strongly against this footnote.

The underlying standard for criminal copyright infringement matters because it brings with it a host of enforcement tools, and active involvement by the state, thus implicating privacy in addition to free speech.

And when the low standard gets exported from the US, it can result in unintended consequences abroad. In Colombia, which enacted its current criminal copyright law pursuant to its free trade agreement with the US, a graduate student was arrested for posting a fellow scholars’ academic paper online without permission. Annemarie Bridy points to this prosecution as the consequence of US trade policy. And while the EFF is optimistic that the student should be acquitted under Colombian law, the case shows that free-speech fears over criminal copyright enforcement are real.

Until enhanced criminal copyright law comes off the US trade agenda, free trade agreements will continue to face opposition from those concerned about free expression and privacy online.

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FAN 36.1 (First Amendment News) Skover to Speak on McCutcheon Case

By way of a shameless plug for my coauthor:

INFLUENTIAL VOICES  

David Skover

David Skover

Seattle University School of Law
is proud to present
Professor David Skover

SCOTUS Books-in-Brief: When Money Speaks: A New Venture in E-Publishing

Wednesday, October 29
Room C6, Sullivan Hall, 4:30 p.m.
Reception to follow

The event is open to all, but RSVPs are requested.

Professor Skover will speak about the creation of the SCOTUS Books-in-Brief imprint and his latest coauthored book, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

When Money Speaks analyzes the controversial U.S. Supreme Court decision in McCutcheon v. FEC, which struck aggregate limits on contributions to political candidates. It has been called “a brilliant discussion of campaign finance in America” and “the best book on the topic.”

The SCOTUS Books-in-Brief series provides readers with reliable, informative, and engaging narrative accounts of significant Supreme Court rulings shortly after they come down.

Introduction by Dean Annette E. Clark 

 

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CUT THE CORD!! HBO without Cable

O frabjous day! Callooh! Callay! It is about time! HBO has announced it will offer a streaming service in 2015. Earlier claims about the need for cable to market and to work with the cable industry seem to have fallen away. The claim is that there are 80 million homes that do not have HBO, and HBO wants to fix that. Can you say Netflix? Netflix subscriber numbers were flat today. Still, if HBO goes over the wall, I imagine that Showtime and others will too. So I may just succeed in cutting the cable. Atlanta has decent digital signals (though there should be more). The most interesting thing to watch: ESPN’s next move. It has a hold on cable a Brazilian jiujitsu master would respect. But if ESPN decides to go with a direct pay model, it could pick up many new viewers, especially the ones who are used to watching the special college version of ESPN they have for free while at some schools.

These markets may also be quite different. Some may prefer the ease of watching the pre-programed madness that is cable. Heck, if I am channel surfing and see that Ocean’s Eleven is on TNT, I will watch with commercials even though I own the blasted DVD. Oh yes, laugh. Because you know that you do it too. May not be Ocean’s but fill in the blank with Bridget Jones or whatever floats your boat; there is something oddly comforting or easy about finding a program in a guide and selecting it. It seems like a low-grade information overload problem. Rather than reaching for the DVD or searching Netflix or Amazon, having someone else narrow the options tips us into odd choices like watching that same movie for the umpteenth time with God help me commercials!

In any event, I hope the HBO experiment works. I know unbundling may threaten many offerings. But the current costs of cable are absurd and the best content is on just a few channels. I don’t think the new golden age of T.V. will suffer in this new world. It could grow as more people are reached with niche shows (that is how I see things like Breaking Bad and other winners that don’t need huge viewership to succeed). Subscriber shows should be a real thing soon. As I said before, Firefly could have been saved today, because enough viewers would likely have fronted the costs to get a 10-13 episode season. Add in many have the patience to just buy the series and binge, or stream on Netflix or Amazon or HBO, and maybe shorting cable companies is smart.

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3D Printed Cars: The Model T Redux?

3D printed cars were a growing possibility while I researched Patents, Meet Napster: 3D Printing and the Digitization of Things. Now a company discussed in the article, Local Motors, has exceeded expectations in a wonderful way. It has produced a 3D printed car in a total of five days. The car, called the Strati, weighs about 2,200 pounds and can go about forty miles per hour. The expected retail price is $20,000. Now that seems less cool. But here is the really good stuff.

The design time and total number of parts is super low. Apparently, the design started in May and was complete four months later. Total number of parts 49 compared to 5,000 for a standard car. As one of the engineers, James Earl, put it in the article: “The thing that this lends most to is customisation-ality, [sic] so you can get a car that really suits your needs with very little monetary input from the design side.” These facts, if they hold up, are why car makers, or at least auto-parts suppliers may be excited or scared out of their minds.

We now have customized cars, with few parts, at a low cost. Let’s assume the cost could go down if the company scales up. Let’s also assume that some of these techniques are incorporated into other auto-maker’s manufacturing. The vast array of auto-suppliers that were in deep trouble when Detroit took a dive could soon be unnecessary. That network of industries Detroit supports could shrink and, in essence, vanish. At the same time, if India’s Tata Corporation, which aims to make low-cost cars for the growing middle class in India, jumps in, Local Motors could find a partner with cash to go big with its technology. High-end makers may allow for bespoke BMWs or Jaguars. Really tall or short people could have cars custom-built to their height and sight lines. Then again, Google may want the tech for its golf cart-like self-driving cars. Lots of possibilities, yes? That’s the point. Something amazing is bubbling up and fast. Which brings me to another point.

Sometimes when I presented the paper, there’d the law professor response of “I just don’t think the tech is there yet.” That view missed what motivated the paper. For once, I wanted to be ahead of the curve on law and technology. Being at Google solidified my view that one can assume the tech will come. “Whether 3D printing will realize all the dreams it currently inspires is not the question” is part of how the article engaged with this point. Local Motors and cars. 3D printed guns. The dreams or nightmares are coming true. Expect some incumbents to fight, some to fear monger, and some to embrace the change. As I offer in The New Steam: On Digitization, Decentralization, and Disruption “this era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.” For now, the car-world could be plunging into the disruption and decentralization phase. As Local Motors and others ramp up their factories and break through the regulatory issues, new players may find it harder to play. Until then, let the games begin!

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One More Thing on Redistricting . . .

The Court has held that a state can use a referendum as part of its redistricting process.  See Davis v. Hildebrandt, 241 U.S. 565 (1916).  In Davis, a referendum was used to reject a redistricting plan drawn up by the Ohio Legislature.  Thus, one cannot say that Article One, Section 4 prohibits states from using a referendum to limit the Legislature in this context.  Maybe the Legislature must be the one to draft the redistricting plan–the difference in the Arizona case is that the Legislature is not permitted to draft anything.  But clearly the Legislature does not have the exclusive power to redistrict or the final say over redistricting.  Is drafting really so different?

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The Law of the Land

I thought I would flag the fact that Akhil Amar has a new book coming out that is available for pre-order on Amazon.  Here is the summary of The Law of the Land:  A Grand Tour of Our Constitutional Republic:

From Illinois to Alabama, and from Florida to Utah, our laws and legal debates arise from distinctive local settings within our vast and varied nation. As the renowned scholar Akhil Amar explains, Abraham Lincoln’s argument against the legality of succession can be traced to his Midwestern upbringing, just as a close look at the Florida legislature and state Supreme Court reveals the fundamental wrongness of the Bush v. Gore decision.

Amar profiles Alabama’s Hugo Black, the dominant constitutional jurist of the twentieth century, and California’s Anthony Kennedy, the powerful swing justice on the current Court. He probes Brown v. Board of Education, and explores the divisiveness of the Second and Fourth Amendments. An expert guide to America’s constitutional landscape, Amar sheds new light on American history and politics and shows how America’s legal tradition unites a vast and disparate land.