First Movers

Publication Available

2011-12-09T14:37:00.003-06:00

My article on civil liability for social harm caused by AI robots has been published by Springer. It's available through the Springer website.

Publication & Presentation Announcement

2011-09-08T10:37:00.003-05:00

My paper, Homewrecker 2.0: An Exploration of Liability for Heart Balm Torts Involving AI Humanoid Consorts, has been accepted for the 2011 International Conference on Social Robotics. It will be published by Springer. And I will be presenting it at the conference in late November in Amsterdam.

The paper is built around a hypothetical alienation of affections or criminal conversion case that involves an artificially intelligent actor. Through focusing on that hypothetical, the paper considers the problems posed by AI liability for social wrongs. It also explores how law and social robotics may be able to adapt to one another to solve potential problems caused by having an AI actor regulated by law that was designed to regulate interactions between humans.

Friends and colleagues have asked me what tort law and AI sexbots have to do with my interest in environmental law and policy. Admittedly, they don't have much to do with each other on the surface. Both involve law and new uses of technology of course. But at root, what interests me is whether we are treating each other and the world around us in a way that is just, compassionate, and sustainable.

I'm looking forward to discussing these goals in relation to social robotics with the engineers, scientists, authors, and other experts at the ICSR 2011 conference.

A Little Mercury. A lot of Mercury. What’s the Difference? Some Members of Congress Don’t Seem to Care.

2011-07-13T07:58:00.005-05:00

**First published at Shark. Laser. Blawg.**

There's a number of reasons why the House bill to repeal national energy efficiency standards for light bulbs makes no sense. The standards, enacted by the Energy Independence and Security Act of 2007 ("EISA"), require that new light bulbs be 30% more energy efficient by 2013. The EISA does not "ban" incandescent bulbs as conservatives have claimed. Industry supports the efficiency standards. The standards, moreover, are projected to save Americans money (about $85 per year, per home and $12.5 billion in energy costs nationally by 2020). One of the stranger elements of Republicans' desire to repeal EISA, though, is a new-found concern over the health effects of mercury.

Rep. Joe Barton (R-TX), who sponsored the bill, has called CFLs "health hazards." Michael Burgess (R-TX), a co-sponsor, expressed his concern, too: "I have stated all along that exposing our citizens to the harmful effects of the mercury contained in CFL light bulbs . . . is likely to pose a hazard for years to come."

It isn't the fact that the amount of mercury in a CFL is one-fifth the amount in a wrist watch battery that makes their concern strange. It's that these same congressional Republicans in recent years have rarely exhibited concern over mercury exposure. To the contrary, Joe Barton previously doubted that mercury exposure from coal-fired power plants was a problem, as he did back in April at a congressional hearing: "To actually cause poisoning or a premature death you have to get a large concentration of mercury into the body. I’m not a medical doctor, but my hypothesis is that’s not going to happen!" Barton and Burgess, along with other supporters of the bill, also paradoxically supported an amendment prohibiting the EPA from spending any money to enforce mercury emissions reductions from cement plants in the United States.

Science isn't a casual accessory to a sound argument. Rather, science is its foundation. Politicians who try to pick and choose when to treat toxins like mercury as harmful, especially when they get it empirically wrong, likewise play a cynical and intellectually dishonest game of Russian roulette with public health. Who cares whether the chamber is loaded, they appear to reason, just so long as they're not the ones holding the gun in the end?

Fortunately, the public seems to have seen through this gambit. In fact, public opinion, as well as that of the energy and light bulb industries, broadly supports the EISA, no doubt because it promises to save consumers $12.5 billion in the next nine years. In attacking the EISA, however, Rep. Marsha Blackburn (R-TN) nonetheless remarked that "[t]hese are the kinds of regulations that make the American people roll their eyes." The public's eyes might be rolling, but not for the reason Rep. Blackburn seems to think.

Why have lawmakers tilted at this windmill? What explains their fervor in attacking a measure that would save consumers tens of billions of dollars? What to them is worth that expense? It would appear to be nothing more than a pat on the back from fellow ideologues and head-in-the-cloud utopists.

Fracking Disclosure in California

2011-06-27T04:01:00.023-05:00

The California Senate Environmental Quality Committee is set to consider a fracking disclosure bill today. Like other disclosure bills, AB 591 does not prohibit or restrict fracking. Rather it sheds light on the fracking process and protects public health by requiring fracking companies to disclose the chemical constituents of "fracking fluid" used at each well.

AB 591 differs in significant ways from fracking disclosure legislation in other states. First, unlike the Texas bill passed earlier this month, the California bill does not exempt "trade secret" chemicals from its disclosure requirement. Second, the bill requires companies to report the amount and sources of water used used in fracking exploration and production.

These differences are extremely positive. By ensuring that all chemical constituents are accounted for, California is in a better position to prevent and clean up toxic spills at fracking sites. Disclosure also has the added benefit of potentially making discovery for toxic tort cases arising from fracking easier.

The bill's unique water disclosure requirement benefits the public too. California's surface waters have been a major subject of litigation and legislation for over a century. (Mark Reisner's Cadillac Desert is still one of the best summaries of this history). California is also depleting its groundwater at an unsustainable rate. Fracking will exacerbate California's water woes. Each fracking well uses approximately two to five million gallons of fresh water. Once used, that water is permanently contaminated by chemical additives and cannot be safely returned to the water cycle. AB 591 would make public valuable information about how much and what water fracking removes from California's limited fresh water supply. With that knowledge the public and the state can make better informed decisions about whether and where to allow future fracking.

AB 591 doesn't propose anything that would limit fracking in California. It simply makes available information that is necessary to protect public health and California drinking water. Some amendments could make it stronger--i.e. requiring reporting of the amount and treatment of fracking waste-water and the concentration of chemical additives. As is, however, the bill is still a very reasonable first effort at creating oversight for fracking in California.

* * *
Sonya Ziaja is a regular contributor at LegalMatch's Law Blog and Shark. Laser. Blog.

"Fraccident Map" image from Earthjustice.

Greetings!

2011-05-30T07:36:00.001-05:00

First, thank you to Dean Chen for inviting me to blog for the Jurisdynamics Network. I'm very happy to join this group of young scholars and writers.

Here's a bit about me:
In my own studies and writing, I concentrate on the intersection of science and law. After graduating from the University of California - Hastings College of the Law (JD, 2009), I completed a graduate research fellowship under the direction of Professor Jaime King. For that project, I researched the constitutionality of prenatal genetic testing regulation. Now in Paris, I write for a number of outlets, including LegalMatch's law blog and Shark. Laser. Blawg., while I finish research for a book about the legal implication of social AI robots. This fall, I will begin a MSc programme in Water Science, Policy and Management at the University of Oxford.

And why I'm excited about First Movers and the Jurisdynamics Network:
As Justice Louis Brandeis put it, “If we desire respect for the law, we must first make the law respectable.” Doing so, however, takes careful tending to. One of the many tools we have to ensure that law is respectable is the sort of interdisciplinary dialogue that takes place here. In short, as we learn about ourselves and the world around us through the sciences, we are better equipped to bring the law up to date as well.

I'm grateful for the opportunity to write here and add my two cents to the ongoing debate between law and science. I welcome comments and will do my best to reply to each one promptly.

Best wishes to all,

Sonya

First Post

2010-02-17T20:14:00.002-06:00

Hello everyone,

I am new to the blog and would first like to extend a very warm thanks to Dean Chen for inviting me to contribute. I graduated from Temple University last year and will likely be starting at the University of Chicago for law school this fall (still haven't made a seat deposit, but am almost 100% sure about enrolling).

I am not quite sure what subjects I will cover and am sure my interests will change once school begins. For now, I will focus mainly on civil rights law and public interest/policy issues that relate to the volunteer work that I do for the Philadelphia ACLU.

That's all for now, I am thrilled to be a part of this very accomplished group.

Publication Announcement

2010-02-12T11:04:00.001-06:00

David Schraub, Comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement, 77 U. Chi. L. Rev. __ (forthcoming 2010).

Sticky Slopes Draft Posted

2009-12-12T02:09:00.000-06:00

You can download the full text of the draft at my SSRN page. Below is the abstract:

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion at grappling with the problem of inequality to seemingly little effect. I argue that attentiveness to sticky slopes is important for two reasons. First, awareness of the prospect of a sticky slope can be important in long term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision.

I'll be presenting this paper at the 2010 Law and Society Conference this May, in a panel entitled "Social Change in Unexpected Ways". The discussant is scheduled to be Gerald Rosenberg, Lecturer in Law and Associate Professor of Political Science at the University of Chicago, and author of The Hollow Hope: Can Courts Bring About Social Change? Any comments you have are greatly appreciated. And I might note, in blogging solidarity, that this paper originally was a blog post I wrote back in May of 2008.

McDonald/NRA v. Chicago: Primal animal salivation

2009-07-11T10:49:00.002-05:00

Ok, I haven't posted to this blog in a very, very long time, but I don't blog anywhere else, so I just had to state how absolutely amazingly awesome it will be for anyone interested in constitutional law (which, after all, is anyone who reads this blog--or any law blog for that matter) if the Supreme Court grants cert. in the Chicago guns case AND phrases a question for review on whether the Slaughterhouse Cases should be overturned. We are talking about a whole bunch of things here at the same time, really almost none of which have to do with firearms and the second amendment (that was all figured out in Heller last year).

A brief summary of the issues the Court would maybe delve into:

Original meaning in 1791 vs. original meaning in 1868 and how to "figure that out;"
Incorporation through the Due Process Clause vs. Privileges or Immunities Clause;
(perhaps) unenumerated liberties and how they relate to the P or I Clause and (even more perhaps) the Ninth Amendment;
The purpose of the 14th Amendment in relation to the failure of state police protection;
The Doctrine of Vested Rights;
Locke vs. Hobbs on the State of Nature;
The import of Corfield v. Coryell, (CC. Pa. 1825) on the meaning of the P or I Clause;
Just how damn radical the radical Republicans of the Reconstruction Congress were.

I don't think any case since the Warren Court has put more primordial, man-vs-state, N(n)atrual L(law) principles before the justices, and perhaps no case since Slaughterhouse itself. For the sake of con law junkies everywhere I desperately hope the Court will grant cert on the P or I issue. My dream outcome would be a majority that solidly overturns Slaughterhouse (that's all one can hope for anyway), and then a bunch of concurring opinions that set up the issues for the next time, regarding what other "rights," "privileges" or "immunities" the Court will recognize and apply to the states.

If anyone would like to add to the above bullet points please be my guest. The Law Professors' brief in support of cert. illustrates just what is at stake.

Also, 34 states have signed on to amicus briefs (33 on one, California in its own) asking that the Second Amendment be incorrporated against them. Has this ever happened before? I can't imagine that in any previous case regarding incorporation that 68% of all states have asked that additional restrictions be placed on their "sovereignty." Any knowlege on if there is any similar precedent?

Menu Labeling Laws – Sweeping The Nation?

2009-02-22T14:54:00.005-06:00

As a newcomer to First Movers, I would like to briefly introduce myself and thank Dean Jim Chen of the University of Louisville Brandeis School of Law for inviting me to contribute. I am 2003 graduate of Georgetown University Law Center and a current doctoral student in public health, focusing on health promotion. My particular area of research interest is the intersection between law and policy in regard to obesity initiatives.

There has recently been a considerable amount of press coverage of regulations requiring that restaurants post nutritional information on menus and menu boards. New York City is the first city to have passed such a regulation, though not without incident.

New York passed its first menu labeling regulation (amending Health Code § 81.50) in December 2006. However, the New York State Restaurant Association successfully challenged the regulation on preemption grounds. On September 11, 2007, Judge Howell (S.D.N.Y.) granted the NYSRA's motion for partial summary judgment, striking down the regulation on the grounds that it was expressly preempted by the Nutrition Labeling and Education Act of 1990 (NLEA) because it applied only to restaurants that had voluntarily provided calorie information, rather than simply requiring all chain restaurants to post calorie information. New York State Restaurant Assoc. v. New York City Board of Health, No. 07 Civ. 5710 (S.D.N.Y. Sept. 11, 2007).

New York redrafted its menu labeling regulations and adopted a revised §81.50 in January 2008. The revised regulations require food-service establishments that are part of a chain of 15 or more restaurants nationally to list calories for standard menu items on menu boards, menus, or food item display tags. The font and format used for calorie information must be at least as prominent in size as is used for the name or price of the menu item. The NYSRA immediately challenged the new regulations on preemption and First Amendment grounds (under a compelled speech theory). However, Judge Howell upheld the new regulations in April 2008, ruling that the new regulations are not preempted by federal law and do not infringe on restaurants' First Amendment rights. Although the NYSRA requested a stay of enforcement pending appeal, Judge Howell denied the request, as did the Second Circuit, and enforcement began in May 2008 (though fines were not issued until July 2008). Supporting New York City in the appeal were a number of public interest groups, including, to name just a few, Public Citizen, U.S. Congressman Henry Waxman, Former FDA Commissioner David Kessler, Center for Science in the Public Interest, American College of Preventive Medicine, American Diabetes Association, American Medical Association, American Public Health Association, and many other leading public health groups and academic experts.

The Second Circuit upheld the revised regulation earlier this week, in an opinion written by Judge Rosemary Pooler. New York State Restaurant Assoc. v. New York City Board of Health, No. 08-1892-cv (2d Cir. Feb. 17, 2009) (Decision available at http://www.citizen.org/documents/NYSRAOpinion.pdf). Rejecting the NYSRA's preemption argument, the court explained: "In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments." In assessing the NYSRA's First Amendment arguments under a rational basis standard, the Court pointed to research concluding that eating out is a major contributor to obesity. Moreover, the Court cited studies showing that consumers are typically unable to accurately assess the caloric content of foods (perhaps because of the "health halo"?) – "a statement which we do not doubt upon being informed, counter-intuitively, that a smoked turkey sandwich at Chili's contains 930 calories, more than a sirloin steak, which contains 540, or that 2 jelly-filled doughnuts at Dunkin' Donuts have fewer calories than a sesame bagel with cream cheese."

New York is not the only city that has mandated menu labeling in recent years. Many jurisdictions have followed suit, including the state of California, King County, Washington (Seattle), Multnomah County, Oregon (Portland), Philadelphia, Westchester County, New York, and most recently (less than three weeks ago), Suffolk County, New York.

Suffolk County's menu labeling bill, which is modeled after New York City's, passed 17-1, which may indicate that these types of bills are becoming less controversial in certain regions of the country. Suffolk County lawmakers stated that they hope that making available more nutritional information will help consumers make healthier decisions. The lawmakers used Starbucks as an example: a grande Caffe' Latte has 130 calories, but a venti Strawberry Crème Frappuccino has a whopping 750 calories. It remains to be seen whether providing this information on a menu will actually lead consumers to choose lower calorie options, although the New York City Department of Health projected that menu labeling in the City will prevent at least 30,000 new cases of diabetes over the next five years.

In September 2008, California became the first state to pass a menu labeling regulation, although its bill is less widely applicable than New York City's law and will not be fully effective until January 2011. Under the California law, which supersedes any existing or future local ordinances, restaurants that have twenty or more locations in California must post calorie information for all standard menu items on menus, menu boards, and food display tags. The bill does not require nutrition information at grocery stores, for items on the menu for less than 180 days, alcoholic beverages, or self-service items at salad bars or buffet lines. Although the bill is less widely applicable than New York City's regulation, which applies to any restaurant with fifteen or more locations nationwide, California lawmakers expect that the provision of nutrition information will result in significant positive health effects for the state, including the prevention of up to 38.9% of weight gain. See here for more details.

Although a menu labeling bill wasn't terribly surprising coming from California, which is generally more health conscious than the rest of the country, it was quite a surprise to see the aggressive approach taken by Philadelphia, home of the cheesesteak. In November 2008, Philadelphia passed what is currently the strictest menu labeling regulation in the country. The bill, which will be effective in January 2010, requires restaurants with more than 15 outlets nationwide to disclose calories on menu boards, AND calories, saturated and trans fat, sodium and carbohydrates on printed menus. It will be extremely interesting to see how this bill will impact sales at sit-down chain restaurants known for delivering caloric wallops, since those establishments have had no nutritional disclosure obligations until now and have thus (predictably) provided minimal to no nutritional information.

Even my home state of Kentucky, not usually known for its nutritional initiatives, is considering a menu labeling bill, filed by state Senator Denise Harper Angel of Louisville. Sen. Harper Angel's bill, SB 133, would require restaurants with at least 10 locations in Kentucky to provide calorie information on menus and menu boards on all standard menu items. Sen. Harper Angel said the bill, which she calls C-Meal (Consumer Menu Education and Labeling) truly is a consumer bill. "Displaying calorie information in this manner is a common sense approach that would allow consumers to exercise personal responsibility by providing them with the knowledge they need to make informed decisions," she said. "C-Meal would allow people to make better dining choices." Although the bill seems unlikely to progress during the 2009 legislative session (a similar bill was proposed in 2008 and went nowhere), it seems indicative of the larger trend of states and cities taking the initiative to provide consumers with nutritional information in the absence of federal regulations on the subject.

Although no federal menu labeling requirements exist, the topic has gained momentum in recent years, especially now that the National Restaurant Association is actively supporting the Labeling Education and Nutrition (LEAN) Act, introduced in the 2008 Congressional session. The industry supports this bill on the grounds that a "uniform national nutrition standard will allow consumers access to detailed nutrition information that meets their needs while providing clarity, consistency and flexibility for restaurants in how that information is provided." The LEAN Act would require restaurant and grocery chains with twenty or more outlets to make nutrition data for menu items available to customers before they reach the point of purchase. Specials that are on the menu for 90 days or less would be exempt.

"Before the point of purchase" gives food establishments significant flexibility. Under the LEAN Act, foodservice operations with menu boards would have the choice of listing calories on the board, on a sign next to the menu board, on a sign in the wait queue or by other means as decided by the U.S. Department of Health and Human Services. This requirement is significantly different than those in many state regulations, which require that calorie counts be listed in close proximity to a menu item and in equal prominence to the item. The LEAN Act also states that restaurants with menus could list calories directly on the menu, on a supplemental menu, on a menu insert or on a menu appendix.

Importantly, the bill would preempt all earlier state and local menu-labeling mandates and preclude states and localities from enacting stricter regulations in the future.

A competing bill, the Menu Education and Labeling Act (known as the MEAL Act ), introduced by Rep. Rosa DeLauro, D-CT in the House and Sen. Tom Harkin, D-IA, in the Senate, is supported by many public interest groups and opposed by the restaurant industry. The MEAL Act (which stalled in committee but is expected to be reintroduced this session) would require restaurants that are a part of a chain with twenty or more locations to disclose : (1) in a statement adjacent to each menu item, calorie content, saturated plus trans fat, and milligrams of sodium in a standard serving; and (2) in a statement adjacent to the name of the food on a menu board, the number of calories in a standard serving. The bill exempts condiments, items placed on a table or counter for general use, daily specials, temporary menu items, and irregular menu items. Interestingly, the bill would also require restaurants that sell self-serve food, such as through salad bars or buffet lines, to place a sign that lists the number of calories per standard serving adjacent to each item, and would require vending machine operators to provide a conspicuous sign disclosing the number of calories in each item. In light of Judge Posner's grudging approval of the New York regulation, it would be interesting to know which of these competing bills he would support.

A key provision, which is highly objectionable to the restaurant industry, would allow states to require the disclosure of additional nutritional information. Although the restaurant industry objects to this provision of the bill, it seems relatively unlikely at this point in time that a particular state would require significantly more disclosure than is required under the MEAL Act's already stringent requirements.

Although the plan is for the bills to be reintroduced in the current session, it is certainly possible that these types of bills will be pushed to the back burner in light of the severe economic pressure afflicting all types of industries. Delaying consideration of laws that would impose a cost on industry (however minimal) may be preferable to pushing forward if the resulting bill would be relatively toothless and would preempt more stringent state regulation.

In my next post — which I promise will be shorter than this one! — I will explore some of the initiatives that seek to limit the density of certain types of food establishments in particular locations. These efforts may gain momentum in light of continuing research showing a correlation between fast food prevalence and negative health outcomes. Only this week, at the International Stroke Conference held by the American Stroke Association, researchers presented epidemiological evidence demonstrating a statistically significant association between the number of fast food restaurants and the risk of stroke. While researchers cautioned that the association does not imply causation, this type of information is virtually certain to influence the debate about the types of establishments that a city will encourage or permit.

2 year J.D. Now a Reality at Northwestern

2008-06-20T19:54:00.000-05:00

See here.

Spread Firefox: Download Day!

2008-06-18T08:23:00.002-05:00

Today's the day to download the newest version of Mozilla Firefox, the fast and free browser.

Firefox 3 has a number of cool features, which you can read about in this field guide. There is also the revamped ccSearch in the browser's toolbar. This search function identifes CC-licensed works from a range of sources by indexing works tagged with ccREL, the metadata specification developed by Creative Commons to express its licensing elements.

As for the celebrated Download Day, Spread Firefox has always been a stellar example of how to evangelize a good cause and generate community interest. Their past projects have been impressive and effectual: campus reps, Mozilla On the Street Interviews, globally-synchronized parties, CD distributions, T-shirt contests, and plenty more.

A key aspect of Spread Firefox's campaign success is its openness. Rather than a central bottleneck stopping up ideas, the Spread Firefox community is organized by nodes and decentralized fora. Their members are open to new strategies, new themes, new structures. If you thinks it's a brilliant idea to plow the Firefox logo corn field so that it can be seen by Google Maps, then more power to you. If you want to print giant stickers and post them around town, then do it.

Having an online platform solely dedicated to community-driven marketing is incredibly powerful. Open up your organization and let waves of ideas pore in from your membership. It is a brilliant way to harness the long tail of activism and community outreach.The good stuff will stick and, well, the lesser plans will go back to the drawing board.

So yeah, here's a good idea: DOWNLOAD FIREFOX 3 TODAY and be part of an attempt for the Guinness Book of World Records.

Image: Screenshot from June 18, 12:12 UTC. Wow, 6 million downloads so far!

(via thornet)

Oh By The Way

2008-06-06T23:25:00.001-05:00

I probably should have mentioned this earlier, but oh well.

Next year, when I (finally!) enter law school, I will be doing so at the lovely University of Chicago.

If you're in town, please stop by and say hi as I finally lose my amateur status.

Law Review Innovation: The Peer-Assist System

2008-05-22T18:55:00.006-05:00

Back when I first joined this blog in November 2006, one of the first topics I discussed was law review innovation (see here and here). What I didn't disclose back then was that law reviews were on my mind because just five days before I made my first post here, a few friends and I had submitted to Penn Law School a proposal for a new business law journal (in response to an open call for proposals from the administration). Our proposal, for a journal that would have been called the Wharton Law Review, would have differentiated itself in a variety of ways, some of which I blogged about on here. For instance, in our proposal we advocated for, among other things, a form of open admissions membership and running a law review like a business.

Among those other things was a new form of submissions review, which we dubbed the "peer-assist" system. Rather than try to summarize peer-assist, I will reprint the relevant section from our proposal:

C. The Peer-Assist System

The most significant departure from the traditional journal structure that we are proposing is what we call the Peer-Assist system. We recognize that this is a novel and ambitious plan, and we are happy to modify any or all of the Peer-Assist structure to fit within the school’s aims. Additionally, we present three versions of the Peer-Assist program, which represent varying degrees of complexity. We believe that Peer-Assist can be of value to any or all of Penn’s journals, but we present it here in the context of the Wharton Law Review. Lastly, because Peer-Assist represents a departure from traditional journal workings, we decided to seek the opinion of faculty members prior to submitting this proposal. We sought responses from 86 faculty members at law schools around the country, of which 36 responded with comments. Most of the responses were positive; some were negative; all were helpful. A complete list of the comments we received is attached to this document as Appendix B.

Sub-section 1 of this section highlights the deficiencies of both student-editing and peer-review. Sub-section 2 describes the full Peer-Assist system that was sent to professors for feedback. Sub-section 3 describes a localized version of the Peer-Assist system, while sub-section 4 explores a student-only version of Peer-Assist.

1. Problems with Current Systems

We believe that the current system of law journals is designed to serve two basic purposes: the dissemination of scholarly works and the training and education of the students involved. The present structure of legal publication is a cross between the two extremes of traditional student-edited journals and fully peer-reviewed journals. Neither of these systems successfully meets both goals, and we hope Peer-Assist serves as an improvement.

i. Problems with Student Editing

Student-edited journals are, of course, the norm in the legal profession. Student-editing allows for the rapid dissemination of scholarly works without the time costs inherent in a lengthy peer-review process. Authors also have the ability to submit to many journals at once, which increases their likelihood of getting published and in a reasonable amount of time. However, many academics have criticized the student-editing system. Students are often under-qualified, or even un-qualified, to be critical reviewers of cutting-edge academic work in many highly specialized disciplines. Additionally, much of the work that students do on traditional journals consists of mechanical acts such as cite-checking, which does little to further the learning process for the students involved. Student-edited journals leave a lot to be desired.

ii. Problems with Peer Review

Peer-reviewed journals also fail to meet these goals. It can often take much longer to publish in a peer-reviewed journal, since the review process is reliant on the schedules of individual faculty reviewers. Also, peer-reviewed journals do not generally allow for multiple submissions, so if an article is not accepted initially, the author has to start the entire process over again. Lastly, peer-reviewed journals do not give their student members substantive tasks such as selecting articles, if they have student members at all.

2. What is Peer-Assist?

i. Description

Our proposed solution to these problems is the Peer-Assist system. This system seeks to tap into the collective wisdom of academics worldwide prior to selecting articles for publication. A journal using the Peer-Assist method would have the same structure as a traditional student-edited journal; only the process would differ. When an article is submitted to the Wharton Law Review, it will be stripped of its identifying information and posted to a secure, password-protected website. Access to this website will be limited to professors of any discipline at any recognized university who request access, all members of the journal (including associate editors), and alumni of the journal. Readers will have the option of browsing articles by subject matter or by keyword, and also will have the option to receive direct email alerts for new articles in certain fields. All readers may submit comments about the articles, which can be as detailed or as frequent as the reader desires. No anonymous comments will be allowed, as the reviewer’s name will be automatically added to every comment he or she submits. Additionally, the content of each comment will be only accessible by the editorial board of the Wharton Law Review, so incoming readers will not be able to see what else has been written about a pending article. Any author may opt out of the Peer-Assist system at his or her discretion, in which case that author’s submission will be reviewed by the editorial board alone. Ideally the Peer-Assist system will include academics from outside the field of law, so that an expert on, say, economics or philosophy can weigh in on cross-disciplinary articles.

It is important to remember that the comments solicited through the Peer-Assist system are simply a tool to aid the editorial board of the Wharton Law Review in its publication decisions. The students of the editorial board will retain final decision-making power over all articles, and will have the option to accept or reject an article at any time, regardless of the feedback received from Peer-Assist.

ii. Benefits of Peer-Assist

The potential benefits of the Peer-Assist system are enormous. The editorial board of the Wharton Law Review would receive guidance from scholars with more experience and more knowledge about specialized subject areas. This would presumably lead to the journal selecting higher-quality articles than a student-edited system alone, while also educating the editorial board to the responses a particular piece garners from other academics. The comments also would give the editorial board ample fodder for potential response pieces or shorter debates, such as the ones that the University of Pennsylvania Law Review currently publishes on its PENNumbra website.

Associate editors on the Wharton Law Review also would have much to gain from the Peer-Assist system. With access to the Peer-Assist database, associate editors would be exposed to a representative sample of the current state of legal academics. Associate editors would have the same ability to comment on articles that professors enjoy. Additionally, the Wharton Law Review can require associate editors to submit substantive comments (similar to a response paper) on a certain number of articles in the Peer-Assist database. This would expand the role of the associate editor into more substantive fields while also increase morale and feelings of involvement on the journal. These voluntary comments or mandatory response papers facilitate the educational training function of the journal, give the editorial board another perspective on the merits of a given article, and provide an excellent barometer of an associate editor’s willingness and analytic abilities, which will aid in third-year selection for the editorial board.

In effect, Peer-Assist takes the benefits that are usually reserved for Articles Editors (including the critical reading of and exposure to many articles) and makes them available to all members of the Wharton Law Review.

At the same time, we believe Peer-Assist represents the best of both worlds for faculty members. The Wharton Law Review can still afford to make relatively rapid publication decisions, but professors will take some comfort in knowing that their articles were reviewed by more than just the students on the editorial board. We also hope that the adoption of Peer-Assist will encourage academics from disciplines other than law to publish in the Wharton Law Review. These professors expect some measure of peer supervision and we hope that they will consider Peer-Assist to be a sufficient substitute, especially when balanced against the benefit of a substantially quicker turnaround time than traditional peer-review.

We believe that Peer-Assist also can be a boon for Penn Law School. If the system is successful, the law school will be viewed as a trailblazer. Even if Peer-Assist is not successful in the long run, Penn will be viewed as an innovator. Several of the law professors who were kind enough to provide advance feedback were so intrigued with the idea that they sought to mention it to their peers, and others asked to blog about it. Regardless of the outcome, Penn’s attempt to improve the journal structure will be noticed throughout the legal academy.

iii. Potential Problems

We recognize that Peer-Assist represents a large departure from the traditional article selection process, and while most of our commentators agreed that the idea was good in principle, there were several recurring criticisms. The most common was the concern that professors across the country have little incentive to give their time to a seemingly random journal. We believe this incentive problem can be alleviated with the offer of tangible benefits to particularly helpful or prolific commentators. These incentives can include automatic expedited review of articles, off-cycle review of articles, membership on a Board of Advisors or similar honor, free subscriptions to the Wharton Law Review, or, budget permitting, a monetary incentive.

A second common critique concerns the faculty reviewers themselves. Some professors worried that the reviewers would give good reviews of their colleagues’ articles in a quid pro quo arrangement, and that these reviews would unduly influence the article selection process. This problem assumes that the editorial board of the Wharton Law Review would be unable to distinguish legitimate criticism from puffery. It is our belief that the editorial board is capable of making these judgments, as distinguishing a good argument from a bad one is what Articles Editors already do. It is an important part of the learning process, and Peer-Assist will simply create another avenue for that skill to be developed. Additionally, we presume that the editorial board of the Wharton Law Review will naturally give more weight to objective comments (e.g. “This argument is pre-empted by X paper,” or “The mathematics in this piece are flawed”) or well-reasoned subjective comments as opposed to comments offering unsupported praise or criticism.

A third and final common criticism of Peer-Assist is that the readers may not be sufficiently qualified to give informed commentary. Peer-Assist will open up the peer-review process to all academics, not just the pre-selected ones that populate traditional peer-reviewed journals. This does present a greater risk of relatively less-qualified commentators, but we believe that the market effects of the Peer-Assist system will outweigh the risk. It is also quite likely that readers will only comment on articles within their field of interest, whereas the current student-edited system relies on only a handful of third-year law students to critique articles in a wide array of fields. Informed commentary from a professor would be a good addition.

3. Localized Peer-Assist

Many of the potential problems of the full Peer-Assist system can be mitigated by adopting what we refer to as “Localized Peer-Assist.” Instead of granting access to all academics, Localized Peer-Assist would give access to the Peer-Assist database only to professors at Penn, and would allow those professors (or the editorial board of the Wharton Law Review) to nominate professors at other institutions. This would allow the network to grow organically, admitting only academics who are interested in spending time to review articles and who are deemed qualified by the editorial board. We also envision adding functionality to the system to allow any authorized reader to forward a given article to any other academic on an ad hoc basis. For example, if a Penn professor was reading a business article that included statistical analysis, that professor could forward the article to a colleague elsewhere with a technical background and ask him or her to ensure that the methods used were satisfactory.

Localized Peer-Assist solves the major potential problems with Peer-Assist. Reader quality is no longer an issue so long as the Wharton Law Review screens those outside of the Penn community who will be given access. A limited pool such as this also minimizes the potential for reviewer puffery. Lastly, the incentives devised for the complete Peer-Assist program still can be used for Localized Peer-Assist, with the additional hope that professors will be more inclined to participate when it is their own school’s journal requesting their assistance.

In light of the smaller pool of reviewers, it would be possible to restrict usage of Localized Peer-Assist until an article passes an initial screening by the editorial board, who would still retain the ability to make the final decision on publication. As in regular Peer-Assist, students and alumni also would retain access to the database. Localized Peer-Assist foregoes the market effects of full Peer-Assist, but eliminates many of the potential problems. In effect, it simply formalizes a faculty review system that some student-edited law reviews have already adopted, except on a larger scale.

4. Student Peer-Assist

Our third and final conception is what we call “Student Peer-Assist.” This consists of the same structure as regular Peer-Assist, only limited to the student members of the Wharton Law Review. Student Peer-Assist preserves all of the educational advantages of Peer-Assist with virtually no downside. All members of the Wharton Law Review, including associate editors, would have the ability to read and comment on all of the submitted articles, thus exposing them to a broad swath of current legal scholarship. Student Peer-Assist allows for the Wharton Law Review to give a significantly more substantive educational experience to its members, which we believe will be valued by the student editors themselves and by the law school administration. The editorial board also gets the benefit of dozens of additional people reading over articles before they are selected.

Student Peer-Assist adopts a system that has been adopted by a handful of other student-edited law journals, including notably the Harvard Law Review. We believe that Student Peer-Assist offers virtually no downside and has the potential to improve morale and involvement of associate editors on the Wharton Law Review, as well as provide a significant educational benefit to all members of the journal.

You may wonder why I felt the need to discuss a proposal that died almost two years ago when it was rejected by Penn Law's administration. Well, upon reading TaxProf Blog today, it seems that Peer-Assist is not as dead as I thought. From a press release issued yesterday:

In a radically new interactive approach to legal scholarship, more than 100 leading scholars are debating the fundamental questions of modern criminal law through a law professor’s version of the TV show American Idol.

Professor Stephen P. Garvey of Cornell Law School, along with Paul Robinson of Pennsylvania Law School and Kimberly Ferzan, professor and associate dean at Rutgers School of Law-Camden, are the guiding professors in a 10-month online effort to create a new method of processing scholarship. In this new project, called Criminal Law Conversations, authors of the top-rated essays can defend their ideas against criticism from the judges, who are other law professors. The essays that receive too few votes get kicked off the stage, which in reality is the University of Pennsylvania Law School Web site, which hosts the Criminal Law Conversations project.

The selected essays will be included in an Oxford University Press book to be published next year.

“Too often opposing advocates talk past each other,” said Paul Robinson, lead editor of Criminal Law Conversations. “You could say that this brings peer review to legal scholarship but it’s more like peer-in-your-face.”

Robinson with co-editors Ferzan, and Stephen Garvey, are guiding professors in a 10-month online effort in which, so far, 120 scholars are participating. They are nominating several dozen scholarly works for discussion, based on the relevancy and compelling nature of the pieces. The author of a nominated work will produce a 4,000-word core text that summarizes his or her thesis, to which four to 10 scholars will then write 800-word criticisms. The original author will reply to the critiques, with these “conversations” making up the published book. ...

The response has been so positive, Oxford University Press is considering applying this model to other areas of the law and other fields of scholarship.

I can't say I'm surprised by the popularity of the Criminal Law Conversations project--the comments I received from 36 law professors at a wide variety of institutions in a diverse array of fields made it clear that Peer-Assist would be received well if implemented. Though I am obviously disappointed that my co-authors and I had not been given the opportunity to be the first to implement this system back in 2006, I wish Penn and Professor Robinson all the best with their endeavor, and hope that its success will incentivize the top law reviews (and the schools that support them) to implement a similar system and bring a close to the endless "student-edited vs. peer-reviewed law journals" debate.

Is Libertarian Paternalism Consistent with Parternalist Principles?

2008-05-08T20:47:00.003-05:00

Thanks to Marc Randazza linking to my blog post from last month about whether libertarian paternalism is libertarian, I feel obligated to make the promised follow-up post on whether libertarian paternalism is consistent with paternalist values.

Unlike libertarians, paternalists do not place nearly as high a premium on true freedom of choice. This should not come as a surprise, since the very philosophy used to justify paternalist policies is that individuals often do not know what is best for themselves, and thus a more enlightened third party should take their choice away and make the "right" decision for them. Therefore, paternalists may not be concerned if employers, educational institutions, or other third parties coerce adults into self-binding programs for their own good.

But is the third party coercion that may result from a libertarian paternalist regime actually consistent with paternalist principles? One must look at the movies of these third parties to determine whether they are truly acting in a paternalist fashion. Liberty University, for instance, appears to have created its rules for a purpose other than helping adults make the right decisions, stating that it has instituted its honor code to "promote a positive Christian community," and one would expect this same rationale to apply if the state of Virginia created a self-binding tobacco criminalization regime and Liberty required its students to opt-in. Though Liberty University may ultimately force its students to make the "right" decision through its actions, one cannot say that Liberty is actually engaging in paternalism, for in such a scenario Liberty would be primarily furthering its own interests rather than those of its students.

Potential coercion in the employment setting, however, provides an even stronger example of how the practical effects of libertarian paternalism may be inconsistent with the ideals of paternalism. As the Georgia gun situation demonstrates, businesses, as profit-maximizing entities, will generally place profitability over ideology or other concerns when making business-related decisions. The Georgia businesses in question--many of whom sell guns in their stores, and whose owners may themselves believe in the right to bear arms--have not banned their employees from keeping guns in their parked cars because of anti-gun animus or a belief that they are helping their employees make the "right" decision, but because insurance companies charge significantly higher premiums when employers allow this practice. Likewise, insurance companies do not charge employers these higher rates out of animus or a desire to help businesses and their employees make "smart" choices, but because their research has shown that businesses that allow guns provide a greater risk than the general population of businesses and thus must pay higher premiums to ensure that the insurance company remains profitable.

In the gun case, as well as a hypothetical smoking or gambling self-binding program, employers and their insurers would coerce employees into certain decisions not because they are enlightened decision makers, but because their own self interests require it. Though employers and insurance companies acting in their own self interests may result in outcomes that overlap with the actual best interests of employees, the process is not consistent with paternalist ideology, which assumes a benevolent, enlightened third party whose primary objective is furthering the interest of those who, for whatever reason, are unable to make the best decisions for themselves. For this reason, libertarian paternalism is not consistent with paternalist values or ideals.

Is Libertarian Paternalism Libertarian?

2008-04-15T09:17:00.007-05:00

As mentioned yesterday, Cass Sunstein is currently guest blogging on the topic of libertarian paternalism at the Volokh Conspiracy. In his introductory post, Professor Sunstein summarizes his idea as follows:

The basic idea is that private and public institutions might choose approaches that a) fully maintain freedom of choice (and are in that sense libertarian) but b) gently steer people's decisions in directions that will make their lives go better by their own lights (and are in that sense paternalistic).

The New York Times has even more succinctly summed up the concept as "[y]ou know what's best for you, and we'll help you do it," with the government adopting policies to "nudge [people] in the right direction." Perhaps the most high profile, and controversial, examples of this involve self-binding schemes such as those adopted in Michigan and Missouri, which allow individuals to voluntarily place themselves on casino gambling blacklists, with state governments then enforcing those voluntary bans by criminally prosecuting violators and confiscating their winnings. Proponents of the libertarian paternalist approach have advocated adopting such self-binding schemes to solve a wide range of other issues, including combating cigarette and alcohol consumption.

For a variety of reasons, I disagree with Professor Sunstein that libertarian paternalism--at least in the form of self-binding schemes--are viable vehicles to address these issues. This post, however, will focus on whether libertarian paternalism actually maintains freedom of choice or otherwise promotes libertarian values.

Libertarians such as Jacob Sullum and myself oppose governmental bans on smoking and other vices on philosophical grounds. As Sullum observes in his book, such bans are "an odious intrusion by the state into matters that should remain private." Essentially, Sullum and other libertarians believe that adults are well aware of the dangers involved in smoking, gambling, and similar activities, but "for the sake of pleasure, utility, or convenience" have chosen "to accept the risks."

Libertarian paternalism as formulated by Sunstein acknowledges the veracity of this perspective, and recognizes that the government should not eliminate an adult's freedom to engage in risky behavior, even when such choices may not result in what the government perceives as the ideal outcome. But do self-binding programs--for instance, a system that would allow an individual to place himself on a tobacco blacklist in perpetuity--truly preserve the libertarian value of freedom of choice? I argue that they do not.

Proponents of libertarian paternalism wrongly assume that government provides the only constraint on adult behavior, and thus an individual who opts-into a system where smoking, gambling, or other vices are criminalized has done so because his present-self wishes for the government to control his future-self by placing constraints on his behavior. But this framework fails to consider the role of powerful third parties--such as an individual's employer or educational institution--who often wield enough influence to coerce individuals to sign away their legal rights.

There is no doubt that these third parties already place significant limitations on an adult's legal rights in a number of contexts. Liberty University, for instance, considers use of tobacco products as a violation of its honor code, which can result in fine, reprimand, and--if enough reprimands are accumulated--suspension or even expulsion. In the employer context, the National Rifle Association and other advocacy groups have recently drawn attention to many large Georgia employers, such as Wal-Mart, that forbid their employees from keeping guns in their parked cars while at work.

Such limitations on legal rights by educational institutions and employers are not significantly obtrusive or reduce freedom of choice to a great extent. After all, a cigarette smoker does not have to enroll in Liberty University, and even if subjected to reprimand such an individual can transfer to another school, one where he would retain the right to use tobacco products off-campus. Similarly, an employee who runs awry of Wal-Mart's gun ban may seek employment elsewhere--and in the worst case scenario, at least has the opportunity to choose unemployment and keeping a gun in one's car over employment and leaving a gun at home.

But libertarian paternalism programs create a danger of those same third parties curtailing an individual's freedom in perpetuity. Liberty University, for instance, may require as a condition of enrollment that a student opt-into a system where possessing tobacco is illegal and subject to criminal prosecution, even long after a student has separated from the college. Perhaps more significantly, large groups of third parties, such as employers, may require such opt-ins as a condition of employment, thus forcing individuals to give up activities such as gambling forever if they wish to earn a living in a given state. In effect, employers, schools, and other third parties would outsource enforcement of their internal policies to the state--hardly a libertarian concept.

The faults with the libertarian paternalist philosophy are not limited to libertarian paternalism's fundamental tension with libertarian principles. In my next blog post, I will argue that libertarian paternalism is also not consistent with paternalist principles.

Sunstein Blogging on Libertarian Paternalism

2008-04-14T14:51:00.002-05:00

Cass Sunstein is guest blogging about libertarian paternalism over on the Volokh Conspiracy. His first post can be found here. I will likely post some of my thoughts on the subject here later this week.

sousveillance: a worm´s eyeview

2008-04-14T06:37:00.003-05:00

The camera relieves us of the burden of memory. It surveys us like God, and it surveys for us.
-- John Berger in About Looking

What do you get when you inverse surveillance? A neologism: sousveillance.

For those of us who don't speak français as well as we ought, at least we can decipher that sousveillance is not describing the "traditional" perspective of an observer, i.e. someone perched sur (above) looking down. Instead, sousveillance is about the worm's eye view; it refers to observation rooted from sous (below) looking up. So while sur-veillance is a model for "top-down" observation (think burly authorities monitoring the streets from tinted control rooms), sous-veillance is an inversion of that standard structure, and it happens when the camera is directed away from the streets towards the tower.

The result? The observed become observers.

WHAT ARE YOU LOOKING AT? [photo of Bansky graffiti] by nolifebeforecoffee licensed under CC BY 2.0

By some interpretations, sousveillance is "watchful vigilance from underneath." It has the noble ring of camera-empowered citizens who by virtue of recording images, are able keep the higher-ups in check. The cameras, once distributed into the hands of dutiful civilians, are aimed at under-observed subjects: the police, military, public servants, the milkman, you name it, and any cheating or unlawful actions are brought to light.

Well, does this really happen when any camera carrying kid can record and observe anyone and anything? Are people taking pictures of the police? Geotagging security cameras? Video taping mistreatment by public officials? Yup. It turns out they are. And it turns out to be a really fascinating form of citizen participation.

Anecdote: When in Mumbai, I was told that the city was toughing up on obese policemen. As an incentive for the force to lose weight, the government was offering a cash reward to anyone who submitted a photo of a fat policeman. Motivated to do my part for society, I tried to take a picture of a rather big-boned copper. He won't let me.

~~~

However, with sousveillance today, it's turning out to be more than just ordinary folks keeping the boys in blue honest. Nowadays sousveillance is ubiquitous disclosure. With constant camera uploads, live streaming, moblogs, tagging, etc., we are living a level of sousveillance that is beyond the structure of bottom -->> up. It's peer <<-->> peer. That is because with each of noble act of internet collaboration, we are contributing to what Jamais Casico colorfully called the particpatory panopticon. Every time we upload a photo, live blog a conference, tag a mail box, we are adding to these network of peer-over-peer surveillance.

Please don't get me wrong. All of this online participation is unquestionably useful and fun and enriching to our common digital culture. It is an invaluable way to share and build upon knowledge. No doubt about that. But I can't help imagine that as we approach total lifecasting, it could be that in the future, municipalities won't need to install security cameras. All of us will be pitching in already. We'll be streaming in family picnics and neighborhood snapshots into some grand searchable geotagged database. Then some upright netizens (us again) will comb the results for any noteworthy sightings. And once they're found, we'll go report them to the nearest overweight cop.

~~~

slide rulz: a librarian’s best friend?

2008-04-08T04:17:00.002-05:00

For anyone that mourning the death of slide rulers, dry your eyes because the OITP Copyright Slider is alive and on the market!

While the slider vaguely recalls the horrendous Mathland modules I suffered through in Department of Defense Dependents Schools, it does indeed seem like a useful tool for establishing the year in which copyrighted works (in the US) enter the public domain.

I personally am often befuddled by all these term extensions and multiple international harmonization treaties, so this copyright geek tool from the Office for Information Technology Policy might indeed be worth the $5 investment.

Words from the Man:

"This single, sturdy product provides instant access to copyright laws and guidelines. Simply align the arrows by date of publication and determine a work’s copyright status and term. And the “Permission Needed?” box provides a quick answer to this very important question."

(via thornet)

Anonymous Articles Editor Blog

2008-03-26T21:25:00.001-05:00

Several articles editors at top law reviews have started a very interesting blog, available here. Not many posts, but lots of extremely useful information for authors in the active comments sections.

Don't Take The Bait

2008-03-26T15:17:00.002-05:00

On the recent Medellin decision, Orin Kerr: "I predict at least a handful of student case comment titles in 2009 that will try to make use of the similarities between the defedant's name and the word "meddling." (For example, "Meddling With the Treaty Power in Medellin," etc.).

He's right, of course, but for the love of God, do not do this. Just. Don't.

U.S. News Rankings Leaked Early?

2008-03-25T20:52:00.002-05:00

See here, here, and here.

keys, money, and mobile phone: the holy trinity

2008-03-24T11:22:00.006-05:00

(via thornet)

Every day when you prepare to the leave the house, you are confronted with a decision that market analysts and designers drool over, namely, what items do you take with you out of the house?

Let's model this. Presumably you have already in your life accumulated an impressive array of objects. They may fill a whole house, a small apartment, or even just a suitcase. But everyday, from that vast collection, you only really consider taking a small percentage of the objects with you out the door.

Screen shot from Jan Chipchase: Our cell phones, ourselves licensed under CC BY-NC-ND.

And from that small percentage that receives consideration, there is an even smaller number of objects that actually make the cut and wind up on your person or in your bag. Moreover, during the course of the day, an even more select number of items are actually used. These objects, these elite chosen few, are objects of vast interest, not only to handbag designers and the like, but also for anyone interested in understanding human nature.

~~~

The interesting thing about all the possible selectively chosen objects, according to this thought-provoking TED talk by Nokia researcher Jan Chipchase, is that, regardless of age, gender, or class, there are three universal must-have items that almost every person decides to bring with them. These objects, toted more frequently worldwide than anything else, are keys, money, and a mobile phone. If that's not a holy trinity, I don't know what is.

The Items I Carry - Daily, photo by drewvigal licensed under CC BY-NC. For a fascinating photostream, check out the Flickr tag theitemswecarry.

These three sacred objects, as Jan helps explain, are indispensable for people worldwide because they address our most basic needs for survival. In other words, they satisfy the bottom rungs of Maslow's hierarchy of needs, namely food, shelter, and security. Keys are your path to shelter (and in some contexts, transportation), money is your answer to food, and a mobile phone provides a link to friends and family, basically the people you can rely on in moments of distress.

Now this is where the holy trinity really gets interesting. If we are always carrying the minimum three objects, would it be possible to develop just one device that could serve the function of three? Could we have one device that replaces keys, money, and phone?

~~~

Ok, we already know that mobile phones are already the tool of the 21st century (pdf). In some countries, for example, minutes on a mobile phone can be sent to another phone, and in this manner bartered, traded, or shared like cash. In these cases, mobile phone operators can function as human ATMs, payroll services, distribution points for charity (i.e. Pyramid of Peace), and invaluable source of news. Here two objects from the trinity, money and phone, have already become intertwined.

There are of course more examples of the phone/money convergence. In Germany, the Deutsche Bahn is experimenting with cash-less mobile phone transactions in their beta of a new ticket payment system, Touch&Travel. The idea is before you board the train, you touch your phone to a sensor, or "touchpoint", located along the track. The device notes your journey's starting point. Then, once you arrive at your destination, you disembark and again touch your phone to a sensor. Your route is calculated by Deutsche Bahn, and you are sent a bill electronically.

As a matter of fact, phone/money mash-ups are ubiquitous in Japan and South Korea. For example, many of you are probably are familiar with the new barcode systems that offer unlimited possibilities to link internet services (including online banking and Paypal) to “real-world” actions, like vending machine purchases or ordering a Big Mac

All the remains in the convergence of the holy trinity is the key/phone integration. This convergence could come in the form of a lock system whose keys can also be stored in a phone. Such a technology is not hard to imagine. There are already quite a few systems that rely on electronic or digital keys, and rigging a phone to unlock these locks no doubt won't be too much of an engineering hurdle.

~~~

With the above examples in mind, do you think it's possible in ten years (or even less!), that we will have a universal device? A mobile money/key/phone? Is it possible that with just one device, all the indecision faced when leaving the house will disappear? How will such a universal product be received? And what will it mean to us as users to own, and inevitably be dependent upon, such devices? It seems a mobile money/key/phone could lead to the most streamlined handbag in the world. On the other hand, it could quite possibly become the biggest liability and security vulnerability in modern history.

Another Mover: Michelle Thorne

2008-03-24T10:54:00.004-05:00

Testing...testing. 1...2...3.

A warm hello and a hearty thank-you from the new girl. By way of introduction, I'm Michelle Thorne, often mistaken in a hasty Google search for another, more notorious Michelle Thorne. To any false hits through my Googlegänger, I fondly retort, "I'm sorry. I'm not a woman of her...um, caliber."

I am very grateful to Jim Chen for his encouraging invitation to join this blog, First Movers. Jim has been a wonderful muse and has really motivated me get my typing fingers in action and start posting. I already do a good bit of typing with Creative Commons International, for whom I help manage jurisdiction projects worldwide as part of the international license porting process. It must be said here, however, that all the content I contribute here is my personal opinion and not a reflection of Creative Common's opinions or intentions.

I am based in lively city of Berlin but grew up in Heidelberg, Germany. I attended Mount Holyoke College, where I majored in Critical Social Thought and wrote my thesis on authorship, originality, and the development of American copyright law.

I am looking forward to First Movers and getting to know my co-contributors. Thanks again for having me, and happy reading!

Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas

2008-03-09T13:47:00.004-05:00

The current draft of my latest paper, titled Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas, is now available here at SSRN.

The AK47 Motion and Anonymous Internet Speech

2008-03-03T08:45:00.003-06:00

Jill at Feministe has made a post about the motion to quash a subpoena directed at AT&T filed by pseudonymous defendant "AK47" in the AutoAdmit litigation (the motion is available here).

Jill makes a good point about the identification issue. I don't find AK47's "I was just talking generally about Jills... not that Jill" to be very persuasive.

What I do find persuasive is the argument that the claims themselves -- at least with regard to AK47 -- lack any legal foundation.

I have no sympathy for AK47. If I take off my "uphold and defend the constitution" hat, I too want to see him outed and roughed up. But I can't remove that hat. Therefore, while I want to see him outed, I don't want to see it happen this way.

Outing an anonymous speaker should be subject to a reasonable standard. The case law so far seems to be developing along just such a standard: Show that you have a real cause of action with some likelihood of success before unmasking someone, no matter how disgusting their speech may be.

In fact, this very issue reared its head on the Feministe blog in the past.

Naturally, Zuzu's speech is hardly to be compared to AK47's speech. The first is intelligent and informative, yet her reasons for wishing to remain anonymous are similar to AK47's.

She wishes to avoid harassment for her views, which are not quite mainstream. I think that she should be proud of what she's wirtten, but that is legally irrelevant.

The latter (AK47) is just a little boy who thought that he could wear a klan hood and that would keep his identity secret.

Nevertheless, when it comes to free speech, we have to turn off our taste buds. Yes, that is quite difficult when we are looking at speech that turns our stomachs. Of course, I see evidence that Jill agrees:

I do have sympathy of the argument that people shouldn’t be outed for making anonymous comments on the internet. And of course I believe that free speech rights apply anonymously online as strongly as they apply in “real” life. Identifying anonymous internet commenters can have a real chilling effect, and I don’t think that people deserve to be outed simply for saying things that others don’t like — even if those things are sexist or racist or offensive.

But back to the main point -- is the underlying suit meritorious enough to validate a request to unmask an anonymous speaker? With regard to AK47's speech, I think not. That doesn't mean that the plaintiffs don't have a right to gripe -- I just see zero legal support for their claims. There are lots of nasty, mean, and brutish things that people do to each other, which have no legal remedy. This is one of them.

If the court disagrees, so be it. Then AK47 should be legally unmasked. But based on both parties' filings, I'm just not persuaded that the claims have any legal validity.

So what should be done?

Should AK47 "get away with it?" No, I'm not advocating that. I say "go get him!"

A smarter way to handle this would be through private action. A few weeks ago, a lawyer offered a $15,000 bounty for the identity of the author of the Patent Troll Tracker blog. I saw no legal basis for that unmasking, but if someone wanted to rat him out for $15k, I saw nothing wrong with that either. FYI -- it worked.

Why doesn't Feministe offer a reward for the identities of some of the worst posters? The Feministe blog seems to have lots of fans, most of whom agree that at least some of these trolls should be outed. Pass the hat, create a reward fund, and watch AK47's friends turn on him. Then you can splash his name from one end of the Internet to the other, and let society (and future employers) judge him for his speech.

That method would

not create bad precedent that could cause unintended consequences,
preserve the First Amendment, and
be a lot more fun.

Wouldn't opponents of this sort of speech rather see a character like AK47 betrayed by a friend than pried from under his rock by a court? Even if one is not motivated by constitutional concerns, isn't that method just so much more poetically satisfying?

Should Jill take my suggestion, I pledge $100 to start the fund.

David's J.L. & Cool Stuff (Vol. 4)

2008-01-17T01:54:00.000-06:00

Adeno Addis, The Concept of Critical Mass in Legal Discourse, 29 Cardozo L. Rev. 97 (2007)

Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L. Rev 223 (2007)

Brent T. White, Say You're Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 Cornell L. Rev 1261 (2006)

David's J.L. & Cool Stuff (Vol. 3)

2007-11-14T14:38:00.001-06:00

It's been awhile, but thanks to Concurring Opinion's "law review table of contents" project, finding neat articles is easier than ever!

Dan Ortiz, Nice Legal Studies (draft paper).

Katherine Y. Barnes, Is Affirmative Action Responsible for the Achievement Gap Between Black and White Law Students?, 101 Nw. U. L. Rev. 1759 (2007)

And of course....

David Schraub, When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, 5 Dartmouth L. Rev. 145 (2007) [note the pagination is wrong in the PDF].

***

Volume Two

Volume One

When Separation Doesn't Work

2007-10-29T19:45:00.000-05:00

When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, 5 Dartmouth L.J. 48 (2007).

Hot off the virtual press (though print copies should, theoretically, be floating out there too). And my first real academic publication, to boot!

Young Scholars Call for Papers

2007-10-15T16:20:00.000-05:00

Apropos for readers of this blog, so I thought I'd pass it along:

THE YALE JOURNAL OF INTERNATIONAL LAW ANNOUNCES ITS SIXTH ANNUAL YOUNG SCHOLARS'
CONFERENCE

CALL FOR PAPERS FROM JD STUDENTS
Deadline: December 10, 2007

The Yale Journal of International Law (YJIL) is accepting submissions for its Young Scholars' Conference, which will take place on March 1, 2008. The Conference aims to encourage scholarship in international law among current J.D. students by giving them an opportunity to
present a paper and receive feedback from distinguished professors in the field. The Conference will include panel presentations of student scholarship, a roundtable discussion on careers in legal academia, a keynote address, and a closing dinner. Two of the papers presented at
the Conference will be selected for publication in YJIL. Support for the Conference has been provided by the Oscar M. Ruebhausen '37 Fund.

YJIL will accept papers of no more than 15,000 words (including footnotes) on topics in international law from current J.D. students. Papers that have previously been published will not be considered. Presenters must be able to travel to New Haven, CT, for a full day of events on March 1, 2008. YJIL will provide presenting students with accommodations and cover up to $200 of their conference-related travel expenses.

Submissions, accompanied by author's c.v., should be sent to yjil.conference@yale.edu .

hypothetical copyright exam question

2007-10-02T17:48:00.000-05:00

[picture: 'Unsolved Mystery', by ButterflySha, used under a CC-BY license.]

Hypothetical copyright exam question for your late-night pondering: If a poem is derived from statistical analysis of 22 books, but contains no actual direct sequences from those books longer than 2-3 words, is it a derivative work of those 22 books?

Thou shalt be I. . .
Thou shalt be I, and quench the
fire in a pit
dug in the

direction of this rock,
deliberately,
now thy peace, the green weed

and explain the high road from which
miraculously we had
been left unsolved.

from King of Eatable Birds, by Anne Mordeus and the machine.

[hypothetical, though I think probably less interesting, parallel patent exam question: if an evolutionary algorithm creates a better design than humans, and the humans can't necessarily explain why, is the resulting design or process still patentable?]

Baby Blues

2007-09-28T12:08:00.000-05:00

Just to reinforce how young I am....

I'm taking the LSAT tomorrow!

Scary. Wish me luck.

quick review of Law Study Systems

2007-09-08T11:23:00.000-05:00

I suppose it was almost inevitable- you can study for LSATs and bar exams online, and you can invest piles of money into various law school study aids, so it was only a matter of time before someone created an online study system for the typical 1L legal curriculum.

And here it is, or at least, the first one that I've heard of. The company calls itself Law Study Systems, and right now appears to have coverage of Contracts, Torts, and Criminal Law- not much, but a good start for lots of 1Ls.

I've only skimmed the materials, since they don't cover classes I'm currently taking, but the material appears to be fairly solid and comprehensive. It isn't the kind of thing that you'd want to learn Contracts from (that is after all what class is for), but it is probably pretty nice for a pre-exam refresher at the end of the semester, or perhaps as an intro to use over the summer before classes start (as I know some classmates did.) And it has fairly broad coverage- 22 'tutorials' on remedies in contracts alone.

Of course, it has the same problems as most review materials- for example, while it has great coverage of remedies, my contracts course did relatively little on remedies, so that material probably wouldn't have helped me very much. Of course, no review materials (unless your professor happens to write review materials as well as teach) will be perfect in this sense, but the difficulty of skimming this material to find what is relevant may be a slight disadvantage during last minute cramming. A search function (currently missing, as far as I can see) might help alleviate that, and make it more useful for targetted last-minute review.

Schools appear to have the option to work with LSS to customize the materials- which is an interesting idea. To the best of my knowledge, no law school is emulating MIT's Open Courseware and putting their course materials online in an organized fashion, and perhaps this might be the start of that for some schools. (Someone will have to eventually- the publicity of making your materials the standard reference for everyone on the web will be too big a lure to ignore.)

Software-wise, this is not terribly sophisticated yet- for example, the online LSAT prep I did was much more interactive, with music and animations, both of which this lacks. Despite the lack of sophistication, the important parts look like they are here and would get the job done- for example, while it is slide-based, it also quizzes you during the slides, so you have to pay some attention (and recall previous lectures). And it works in Linux, so it is likely to work on the Mac as well- something my LSAT prep could not do, in part because of the audio requirements.

Given how little I've used this, and given how much different people's study needs vary, I can't say that I can recommend this without reservation- but it certainly merits looking at if you're a 1L who wants to look at online options for studying for your core classes.

[Disclaimer: LSS contacted me and listed me as a 'blog they like', and gave me free access to their premium materials for this review, but otherwise I've received no compensation nor do I have any relationship with them. I reviewed them instead of ignoring them, like I do most linking/review requests, because of my long-standing interest in online education.]

The Id, The Ego, and Equal Protection Symposium

2007-08-29T16:43:00.001-05:00

The Connecticut Law Review is going to host a symposium on the 20th anniversary of Charles Lawrence III's influential article, The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism, published in 1987 by the Stanford Law Review. It's a great article, and the cast of the symposium looks pretty high caliber as well.

November 2nd, 2007--should be good.

AltLaw

2007-08-25T13:39:00.000-05:00

Announcing the launch of AltLaw, an advanced search engine for the last ten years of Supreme and Appellate Court opinions. The project was created with the help of our very own Luis Villa, and looks to be quite the nifty little creature.

So thanks, Luis, and everybody else who got this tool up and running.

I'm #9!

2007-07-10T12:44:00.000-05:00

According to SSRN download statistics for the past two months (May 11th to July 10th), my article is ranked #9 in downloads among all articles in the Law & Society: Public Law section. It reached that lofty position with 58 downloads.

The article, in case you've forgotten, is entitled When Separation Doesn't Work: The Religion Clauses as Anti-Subordination Principles, and it is forthcoming soon in the Dartmouth Law Journal. Thanks to everybody who has read and commented on it.

Do Law Reviews Matter?

2007-06-28T14:55:00.000-05:00

So asks CONNtemplations, the Connecticut Law Review's online supplement, which has just posted some very interesting essays examining this question.

I will try to post some thoughts on these essays sometime in the coming weeks (bar prep permitting), particularly since a few authors have engaged some of my earlier arguments regarding law reviews and online supplements. In the meantime, you can access the essays here.

Hat tip: Prawfs.

Thomas v. Breyer Smackdown

2007-06-28T10:43:00.000-05:00

Amid all the drama of today's school racial classification decisions, check out footnote 15 of Justice Thomas' concurrence. It compares Justice Breyer's dissent to the Lochner majority opinion by cryptically, but unmistakenly, implying Justice Breyer seeks to import his book Active Liberty into the law as Lochner allegedly sought to import Herbert Spencer's book Social Statics. Ouch!

How I'm Spending My Summer, GPL v3 edition

2007-06-26T19:41:00.001-05:00

I'm spending my summer working in the Legal Affairs department at Red Hat, Inc. ("The Open Source Leader.") Not coincidentally, the past several weeks of my life have been a deep dive into the esoterica of copyright/copyleft licensing- particularly the new GNU General Public License, due to be released this week. If you're deeply curious about the license, the details, and why it matters you can see an explanation of the license and why it matters (along with some haiku) at my personal blog.

Balkin/Ackerman Throwdown

2007-06-03T04:00:00.000-05:00

Well, not quite--but "respectful engagement" just doesn't pop the same way. Still, any law geek readers (any of y'all out there?) shouldn't miss Jack Balkin's four-part response (Part One, Part Two, Part Three, Part Four) to Bruce Ackerman's Holmes Lectures, The Living Constitution.

Conference Spotting

2007-05-31T21:57:00.000-05:00

A few months ago, I described the color-blind ideology as "the French model," due to the fact that color-blindness has found its purest home in the land of the Gauls (and also, admittedly, because I figured it would annoy those on the right who like to think of Europe as enthralled by hyper-liberal multiculturalism). This stood in contrast to the American system which permits some color-consciousness (affirmative action being the key example).

But it seems the language has penetrated. Paul Secunda has the goods on an upcoming conference in Paris exploring comparative race relations. From the announcement: "Should Europe adopt US-style affirmative action? Should the US embrace the French model of color blindness?"

The Digital Identity of University

2007-05-31T11:02:00.000-05:00

Tomorrow afternoon I will facilitate the Digital Identify of University working group at Harvard Law School's Internet & Society conference. Here is the description of the working group:

With digital tools such as message boards, social networks, and search engines making University and its clients’ identities more public than ever, navigating the integrated media landscape for students and other members of University has become increasingly difficult. In a world where anonymous postings can have lasting effects on the professional and personal lives of students, and when University clients and their digital identities can be expressions of the University as a whole, this workshop will focus on how we begin to navigate this space and how we form the digital identity of University.

The panel is in Pound Hall 107 from 1:45 to 3:30PM. I will likely blog about some of the issues discussed sometime next week.

Will The Real Jonathan Adler Please Stand Up?

2007-05-26T16:53:00.000-05:00

Running through a very interesting NYT article on how we use narratives to construct our lives, I read this passage:

Jonathan Adler, a researcher at Northwestern, has found that people’s accounts of their experiences in psychotherapy provide clues about the nature of their recovery. In a recent study presented at the annual meeting of the Society for Personality and Social Psychology in January, Mr. Adler reported on 180 adults from the Chicago area who had recently completed a course of talk therapy. They sought treatment for things like depression, anxiety, marital problems and fear of flying, and spent months to years in therapy.

A psychology researcher at Northwestern? But I thought Jonathan Adler was a Professor of Law at Case Western Reserve who blogged at Volokh? Or perhaps a Philosophy professor at City University of New York who is currently visiting at Carleton?

Now, Jonathan Adler isn't the most uncommon name (call me if you meet three Christian Goldsteins), but it's not exactly John Smith either. Three Jonathan Adlers in my immediate orbit seems like a bit much. I recommend a death match to thin the ranks a bit.

Three Jons enter, one Jon leaves!

UPDATE: Via Adler #2, we find there is yet another Jonathan Adler lurking out there.

Student Publishing Opportunity in Penn Law Review

2007-05-18T21:20:00.000-05:00

Topic: The Class Action Fairness Act of 2005
Deadline: September 15, 2007

PDF flyer available here.

Hat tip: Concurring Opinions.

Torture and Newspeak

2007-05-15T22:49:00.000-05:00

Did anyone get the sense that Ron Paul was the only candidate in the Republican Debate tonight that has read the book 1984? He took Brit Hume's covert phrase "enhanced interrogation techniques" and said "it sounds like newspeak" and is just another word for torture. (See Andrew Sullivan's take on the debate if you missed it.) No one on the stage seemed to get the reference, nor anyone in the red state crowd, but it was heartening to hear the reference amidst an otherwise drowning Republican party.

Horowitz on Anonymous Internet Defamation

2007-05-15T16:49:00.000-05:00

Steven J. Horowitz has uploaded a short essay, titled Defusing a Google Bomb, to SSRN. Here's the abstract:

Anonymous internet defamation is nothing new, but the recent Autoadmit controversy highlights one particularly difficult aspect of this problem: Google bombing. As private individuals are defamed on popular anonymous message boards, searches on Google and other engines return the defamatory posts as top hits for those individuals. This short essay suggests a notice and takedown solution modeled after the DMCA's similar provisions. I argue that such a solution is much more effective for the Google bomb problem than for copyright infringement because the parties involved are much more likely to have similar legal resources than in copyright disputes.

I can't say I fully agree with this proposal, or even the idea that we need legislation to deal with this problem. However, I think he's correctly identified the real problem here: the problem isn't the defamatory speech itself, but search engines, and I can't imagine that this problem will ever be resolved unless the role of search engines is acknowledged.

Drumbl Making an Appearance at PrawfsBlawg

2007-05-10T14:42:00.000-05:00

Washington & Lee Law Professor Mark Drumbl will be guest-blogging at PrawfsBlawg over the next few weeks. Drumbl, for those of you who don't know, is a baller and one of the most interesting theorists on the punishment of mass atrocities (genocide and the like). His book, Atrocity, Punishment, and International Law looks fantastic and got a great plug by Kevin Jon Heller at Opinio Juris.

Glad to see you in the blogosphere, professor.

The Second Amendment--Next Stop Supreme Court?

2007-05-08T12:25:00.000-05:00

Via David Kopel at Volokh, the DC Circuit has denied en banc review in Parker v. District of Columbia, the (for now) successful challenge to the District of Columbia's ban on handguns and functional longarms. I was all set to blog tomorrow about how it had been a month since the District filed its petition for review and no response had been requested by the Court. Guess this was why.

There is now nothing for the District to do other than petition for cert. in the Supreme Court or accept the decision of the Court of Appeals. One snarky suggestion made by some pontificators (I can't remember where on the blogosphere I read it) is that the District could not petition for cert, but still seek to enforce the ban as enforcement of it would likely be adjudicated in the District of Columbia's court system (akin to state courts) where there is precedent exactly opposite to Parker. A case noting this contrary precedent was just issued by the District of Columbia Court of Appeals (the "state" supreme court for the District) last week (Andrews and Mack v. U.S.).

However, the District has made no noise about backing down so you gotta think that they'll request cert. The quick timing of an en banc denial makes for a very interesting schedule. The cert. petition will be due in 90 days. That's around August 8, 2007. For no other reason than a parallel timeline, a case to view for when that means the case would be argued (if cert. were granted) is the famous Grutter v. Bollinger (the U of Michigan Law School affirmative action case), when the cert. petition was filed on a very similar August 9, 2002. As one can see from the Supreme Court's online docket, the respondents (the University) were given two different extensions of time to respond to the cert. petition, which was then filed on October 29, 2002. The reply brief was thereafter filed on November 12, 2002. The Court then granted cert. on December 2, 2002. That's four months later.

In Parker, unlike in Grutter, the appellees' attorneys are chomping at the bit to get into the Supreme Court (even more than the appellants!). They expressly brought the suit to get the issue to the Supreme Court with favorable plaintiffs. Therefore, I don't see them asking for an extensions of time at any point in the cert. proceedings. The District might, but that's less likely since they're the appellant.

What does all this schedule-talk mean? That if the Supreme Court grants cert. on this issue, of which there is all kinds of debate, it will be heard in the spring of 2008--smack-dab in the middle of the 2008 Presidential race. If the Democrats are smart (and so far they have been) they will briefly state that they are committed to gun rights, and say no more. Hillary probably can't say this with a straight face, considering her prior actions, but the rest might just get by with it. This case is shaping up to be big, really big.

Symposium Announcement

2007-05-07T16:33:00.000-05:00

The Berkeley Journal of African-American Law and Policy will be hosting its annual symposium on "Setting the Agenda: Examining the Critical Legal Issues Facing African-Americans and Minority Communities in the 2008 Election." Papers are due June 8th, decisions will be given out by June 20th, and the conference itself will be held November 9th.

Hat tip to and full call for papers at PrawfsBlawg

The Motive and The Message

2007-05-03T17:00:00.000-05:00

Over at my home base, I give some thoughts on the proposed hate crimes bill moving through Congress.

What allows for a "Thatcher" Moment?

2007-04-28T12:15:00.000-05:00

There's a great piece in today's Times (I would say "London Times," but it really is just "The Times") by Matthew Parris on prospects for economic reform in France if Nicolas Sarkozy is elected in a week. That France is in dire need of economic liberalization there is no doubt, argues Parris and as I would agree. However, he says that the French just aren't ready to accept that liberalization. This is in contrast to how the British were ready to accept the economic reforms of Margaret Thatcher:

The Britain I remember in 1979 had that impatience. It would be wrong to say the Tories had persuaded the country of Thatcherism – we hardly knew what that was – but of one thing we were sufficiently persuaded: that the old way wasn’t working, wouldn’t work, and had to be abandoned. In the air was a hatred and fear of the trade unions, a detestation of suffocating state bureaucracy, and a furious contempt for the incompetence of nationalised industries and utilities. Britain, it seemed to many of us, was sick, and might even be dying.
I don’t think France is anywhere near that state of mind. I don’t think France is ready. I don’t sniff in the wind in la France profonde (though I begin to in urban Paris) that palpable sense of having reached the end of a road. The changes France needs to embrace will be convulsive. The pain will be intense, the dislocation bewildering and cruel. We British found that when Thatcherism arrived. But even at the low point of Thatcher’s first term, even when she personally had become a figure of loathing across much of Britain, you almost never heard anyone suggest a return to what had gone before. There was a sense, in 1979, that we had burnt a bridge behind us, and had wanted to.

Margaret Thatcher's election really did change British society, in a way that Reagan's election of 1980 pales in comparison. Sure, Reagan lead to some economic reform, particularly tax cuts, and accompanied a general change in attitude, but it didn't turn the economy on its head as the Tories of 1980s Britain did. Other non-excommunist countries have met similar changes in recent decades; New Zealand particularly comes to mind. Perhaps Thatcher's reforms were not the only solution for Britain, perhaps a less jarring experience could have mended Britain's sick (and it really was) welfare state, but reform was so needed that the British were willing to look past their socialist leanings and give the Iron Lady's policies a try.

I think Matthew Parris might be on to something with his observations on the French of today. There is no "winter of discontent," as there was in Britain in 1978-79. Many French are unemployed, but they, bizarrely, are far more likely to protest threats to job security than the fact that they don't have a job to begin with. I've wondered for some time what level a society needs to be at before it will take the plunge and give liberalism a try. I don't know if there is firm answer. The thing is, if a country is in dire straights why wouldn't it reach out for a populist savior, a la Il Duce, instead of a reformer? Of course, maybe that's what the British thought they were going for with Thatcher, just that her baggage meant privatizing and union-busting, not making the trains run on time.

The question I take away from this is what does a country need before it's willing to reject its popular ideology? Is it a certain level of unemployment? Crime? A narrative of these things, whether or not they are true? I'm curious as to people's speculation.

A Musing on the Constitution and Windows

2007-04-18T15:46:00.000-05:00

Over the run of the semester, I've often been struck by how the US Constitution is like Windows. This seems like such a trite and obvious observation (at least to any software-engineer-turned-lawyer) that I have (mostly) resisted blogging it, but I can't resist it any more.

The final straw that caused me to muse publicly was that today was my last day of Con Law, and try as I might, I was struggling to pick out any coherent themes which ran throughout the course.

The theme that finally jumped out, of course, was the lack of consistency. By necessarily being all things to all people, the Constitution has done a remarkable job of adapting and meeting the needs of a changing society. Yet, at the same time, the requirement of meeting the new challenges without much changing the underlying text, and doing that by layering together 200 years of constantly-shifting precedents overtop of the basic, underlying core, have left Constitutional law in a fairly precarious position. Because new changes are only tenuously linked to the core underlying concepts, they are unstable and susceptible to attack on similarly tenuous grounds. And as soon as you get off the well-documented paths, forget trying to make sense of the results you're going to get from the court- give them A and you might get back X, Y, or π.

So too with Windows. As this Times article attempts to explain, by being all things to all people, Windows has become massively successful. But that same pandering has left the code in a precarious state- with security holes, instability, and serious usability problems. Microsoft ended up rewriting much of it in order to release Vista, and it still isn't where it should be on any of those counts.

The analogy could be extended for literally dozens of pages (which I'll spare everyone :), but unfortunately I'm not sure it has any practical implications. Software engineering has developed some techniques to deal with complexity, and many of them have analogues in the legal world. But unfortunately they often wouldn't apply to the Constitution. For example, engineers often speak of 'refactoring' code- looking at a code base that has emerged over many years in order to draw out the common principles, and then reorganizing and simplifying. This will be familiar to any first year law student as a Restatement, and many commercial parties have been trying to follow suit by clarifying their contracts. Unfortunately, restating the Constitution would be impossible, as far as I can see- the political implications would stall any such effort dead in its tracks. Similarly, as any engineer will tell you, better engineering has costs- 'doing things the right way' often means saying no to customers now in order to better protect everyone's long term interests. To anyone who has ever read a Scalia dissent, this will no doubt sound familiar, so this approach certainly can be tried in law. But it often isn't clear whether this is good engineering or good jurisprudence.

And so we soldier on, precariously balanced between getting lots of things done and occasionally wanting to scream at our computers and our Con Law professors (not to mention our Supreme Court Justices.)

If any wiser, sager scholars of either legal code or software code care to share how this could have practical implications, or ask me questions about the other side, or wants to point me at where this has been said before and better, or just wish me desperately needed luck on my Con Law exam, fire away :)

[Image of the Constitution window from the National Cathedral, courtesy of dbking and his excellent collection of CC-BY Washington DC pictures. Image of a real Vista error message via the very cool Jeremiah Palecek.]

Virginia Tech News Coverage

2007-04-18T07:57:00.000-05:00

Does an article like this serve any purpose other than to ruin someone's life?

Footnote Hell

2007-04-14T22:19:00.000-05:00

I just came across the following footnote in Reginald Leamon Robinson, The Sacred Way of Tibetan CRT Kung Fu: Can Race Crits Teach The Shadow's Mystical Insight and Help Law Students "Know" White Structural Oppression in the Heart of the First-Year Curriculum? A Critical Rejoinder to Dorothy A. Brown, 10 Mich. J. Race & L. 355, 356 n.4 (2005)

By ordinary people, I mean non-elite Asians, blacks, Indians, Latinos, whites, and women, including immigrants. See generally Reginald Leamon Robinson, Human Agency, Negated Subjectivity, and White Structural Oppression: An Analysis of Critical Race Practice/Praxis, 53 Am. U. L. Rev. 1361, 1363 n.9 (2004) [hereinafter Robinson, Human Agency] (defining ordinary people to mean "non-elite Asians, blacks, American Indians, Latinos, whites, and women, including immigrants").

Is there any just world in which that last parenthetical is necessary? Oy gevolt!

Also, Professor Robinson's article is an obvious nominee for coolest law review article title.

Just as Predicted

2007-04-14T19:07:00.000-05:00

Below is a screenshot of the top 10 Google search results for Adriana Dominguez, as of this evening (click for larger):

So, it looks like the New York Daily News has succeeded in its mission to ensure that "potential employers are sure to discover Dominguez's striptease with a quick Internet search."

O'Reilly: "Mechanism is better than policy"

2007-04-14T12:47:00.000-05:00

It seems that Tim O'Reilly is backing away from his proposed blogger code of conduct:

So rather than a blogger's code of standards, perhaps what I ought to be calling for is moderation systems integrated with the major blogging platforms.

John at librarything wrote:

"One technical suggestion, employed by my employer: letting users flag inappropriate comments, which then become click-to-see. This lowers the visibility of the trolls, without censoring them. For an example, see this thread:
http://www.librarything.com/talktopic.php?topic=8702

Message 5 is no longer immediately visible, because it was flagged by a certain number of users as inappropriate. But it can still be seen, if you want to, by clicking on the 'show' link. It's a compromise, but perhaps a practical one.

Similarly, it might help the situation to let users configure whether or not they want to see flagged content, and set the default for flagged content to some sort of reduced visibility.

I really like this, as it addresses one of the biggest hesitations I personally have about deleting comments, namely that deleting part of a conversation can make it impossible to reconstruct what really went on. And there have also been problems in the past with blog owners selectively editing conversations to present themselves in the best possible light. A mechanism that preserves comments while hiding them "in the back room" so to speak would seem to me to be a really useful tool.

I'm in complete agreement with Tim, and have been a believer in this idea for a very long time. Unfortunately, it is unlikely that implementing this idea on a large scale will reduce criticism, as demonstrated by the continuing attacks on AutoAdmit despite that site having an off-topic filter that by default hides 99+% of offensive content.

More on Journalist Ethics and the New York Daily News

2007-04-13T01:43:00.000-05:00

I recently received this email from Daily News reporter Veronika Belenkaya in response to my blog post about her story on the third year Brooklyn Law Student who appeared nude on the Playboy Channel:

I was aware of her boyfriend's involvement. But since at the time the article was going to print I did not have a 100% confirmation on his name or that he was in fact her boyfriend, we made a conscious choice to leave it out until we were sure.

Alright, fine. I think most people wouldn't fault a newspaper for choosing not to identify someone by name without confirming their actual involvement in an incident.

But then I saw this follow-up piece in Wednesday's Daily News. To their credit, the Daily News finally acknowledges the role of Adriana Dominguez's then-boyfriend, Sean Kalish, played in the video. ~~However, the paper once again fails to identify Kalish as a third year Brooklyn law student~~ or raise the possibility of potential character and fitness difficulties. Rather, the only purpose of unmasking Kalish appears to be to use him to attack Dominguez's judgment and question her moral character:

A Brooklyn law student who took it all off for Playboy TV has only herself to blame for the scandal, her ex-boyfriend told the Daily News yesterday.

Adriana Dominguez, who's in her final year at Brooklyn Law School, blabbed about her sexy exploits all around campus, said former flame Sean Kalish.

"She told everyone in school, 'This is what I did, watch this,'" said Kalish, 25, a fellow third-year student at the school.

"She even posted a link to it in her MySpace [online profile]," he said.
...
"She kind of thrives on this kind of drama," he said.

"I wish that Adriana had been a little more discreet about it," Kalish said.

One commenter to the previous post stated that the Daily News's "agenda is simply to sell as many papers as possible and that a news story about an attractive blonde law student appearing in Playboy is going to get more attention than one that talks about a guy in virtually the same situation." Even if this is the Daily News's only motive for running this story the way it did (and I'm not so certain that's the case), can one really argue that the Daily News reporter is engaging in ethical journalism, especially in light of this follow-up article?

My Problem with the Yale Law Journal

2007-04-13T01:15:00.000-05:00

Given that some people have misunderstood my objection to the Yale Law Journal altering my Pocket Part essay, I thought I should follow-up on my previous post about this experience.

Some, including one of my co-bloggers, initially had the impression that this fuss was all about a link to AutoAdmit being deactivated in my author byline. Let me make one thing clear: I don't care about the link. I don't own AutoAdmit, I don't work there anymore, and I don't care how much traffic it gets, and if the Yale Law Journal had asked me for my input before taking unilateral action I would have not only requested that the link be removed, but the reference to AutoAdmit entirely. After all, isn't updating articles to correct information one of the purported benefits of electronic publication?

My problem is with the editorial note. Because of that note, which contains false and misleading information about me (as well as AutoAdmit). I simply cannot feel comfortable sending a link to my Pocket Part piece to anyone now. How is the note false and misleading? Three things come to mind:

Defamation has a very clear legal meaning and most (if not all) of the posts in question, while offensive and in bad taste, are not defamatory. "Stupid B---- to Attend Yale Law," for instance, is clearly an opinion and not a statement of fact. Furthermore, there is no evidence that the statements that could be construed as statements of fact, like the allegation that the girl in that thread has a 159 LSAT, are actually false. Given that Yale Law School admitted three students with 3.75+ GPAs and sub-160 LSATs last year, there is a possibility that the statement actually is true (and the only poeple who can prove it false--the girl, LSAC, Yale's dean of admissions--have not released the information).

AutoAdmit did not publish any of this information. In the absence of Section 230, AutoAdmit would likely be treated not as a publisher under the common law of defamation, but a distributor. After all, AutoAdmit itself did not author any of this content--unaffiliated third parties did--and AutoAdmit did not prescreen content before it was posted or advertise itself as a place that prescreens content. An individual reading that editorial note who is unfamiliar with AutoAdmit would conclude that AutoAdmit itself was authoring defamatory comments, which is simply not true.

But most importantly, because the editorial note is linked to from my Pocket Part essay, readers would be misled into thinking that I somehow had decision making authority over the AutoAdmit message board. This is simply not true. My title at AutoAdmit was Chief Education Director. I had that silly title for a reason--I was the administrator of AutoAdmit Studies. Jarret Cohen has always had sole decision making authority over the message board--in fact him retaining absolute control over the board was a provision of our partnership agreement. Believe me, if I had sole decision making authority over the message board, I would have done things differently.

To reiterate: my real problem here is altering my essay's page to include a link to that statement, and implying that I was in a position to do something about what they're condemning without subjecting myself to a potential lawsuit for breach of fiduciary duty, breach of contract, and other assorted causes of action. I wouldn't care if the Yale Law Journal condemned AutoAdmit elsewhere on its site--in fact, depending on how that condemnation statement was worded, I might have signed it myself!

Blogger Code of Ethics? How about a Journalist Code of Ethics first?

2007-04-10T21:39:00.001-05:00

APRIL 13 UPDATE: See follow-up post here.

Yes, I know one already exists, though one would think otherwise given recent stories by supposedly legitimate media outlets. But how about actually enforcing journalist ethics in the news media before trying to force similar tenets on the blogosphere?

I have avoided blogging about the topic of media bias, largely because people would (rightly) question my own objectivity on that issue, given recent events. Though there is nothing more frustrating in the world than to see something in the newspaper that you are 100 percent certain is an absolute fabrication, it is almost as frustrating to see those same newspapers and other old media outlets attempt to sell themselves as objective and factually accurate while dismissing blogs and other new media as biased and full of errors.

Today, the New York Daily News ran a front page article about a third year Brooklyn Law School student who appeared nude on an episode of a Playboy Channel TV series that aired in January with little to no fanfare but attracted attention when a 45 second clip of the broadcast appeared on the internet three weeks ago and quickly "spread... among students and some faculty at almost every New York law school."

Before I comment any further I should make one thing clear: this law student certainly put herself in the public eye by voluntarily appearing on this television show. It is difficult to predict how the public will react to attention-seeking behavior--even people who engage in virtually identical attention-seeking acts may end up with widely divergent outcomes. Thus, it is difficult for me to sympathize with this law student when she says that she "did not expect it to become so widespread." While it may be unfortunate that the media chose to cover this story in such a way, the media (as well as anonymous internet users) certainly had the right to do so.

That said, certain aspects of the Daily News's coverage of this story do not sit well with me, and deserve further attention and discussion:

1) The Daily News did not report the news--it created it.

Did a law student appear nude on the Playboy Channel? Yes.

Did law students at her school see a video of her appearance? Yes.

Was her career ever in jeopardy? No.

Well, at least not until the Daily News got involved.

The Daily News reporter writes, among other things, that "potential employers are sure to discover Dominguez's striptease with a quick Internet search." But this is simply not true. Although Dominguez's video spread through email and was discussed on a few isolated message board threads, as of this writing none of those discussions appear in any Google searches for Adriana Dominguez (see for yourself). Given that she shares her name with a Spanish actress, a University of Texas lecturer, and an executive editor at HarperCollins, it is highly improbable that an employer googling her name would ever stumble upon this video. Similarly, it is unlikely that the New York bar's character and fitness examiners would have become aware of this incident through Google.

Until now. Though this law student had completely G-rated Google results prior to the story, in less than 12 hours the Daily News article has already shown up in Google as the 21st result for her name, and is likely to enter the top 10 relatively soon. In other words, the Daily News did not report on an existing controversy--it actually created a controversy when none existed prior to its involvement.

2) The Daily News ignores the OTHER third year Brooklyn Law School student who appeared on the Playboy Channel

But perhaps the most perplexing aspect of the Daily News's coverage of this "story" is its application of double standards. While the Daily News plasters Ms. Dominguez's photo on the front page of the newspaper and makes repeated references to her career as a lawyer being in jeopardy (including the possibility of not making it through character and fitness), the article fails to mention that, according to several sources, the male performer in the video is also a third year student at Brooklyn Law School. This individual is not a mere bystander--he has dialogue, and participates in the much-written about spanking scene (see here--note that while the link contains censored pictures and commentary, it is not safe for work).

Don't get me wrong: I do not believe that either of these students should be subject to increased scrutiny by the character and fitness committee, let alone have their law licenses denied as a basis of their participation in this video. But if the Daily News and other media outlets are going to place her photo on the front page, identify her by name, and speculate that the video "could have dire consequences for the would-be lawyer," result in "tough questions from the Committee on Character and Fitness," and potentially "wreck her future," should they not subject her male law student co-star to comparable scrutiny? Or do the Daily News and Brooklyn Law School believe that it is perfectly acceptable to appear in a pornographic video as long as you are a man?

3) What's the Daily News's agenda?

Make no mistake about it: there was an agenda here. Everything from the front page placement to the failure to mention the male law student indicates that we are not looking at an unbiased and neutral piece of journalism. Someone--whether the reporter or whoever contacted the reporter--wanted this article to run in the form it did, and unfortunately we have no way of knowing who that someone is or what that someone's motives are. I wish I could say this is an isolated incident, but having been the victim of similar hit pieces, as well as having friends who work at traditional media outlets, I suspect stories like this are the rule rather than the exception.

Are some bloggers biased or have a hidden agenda? Most certainly. Are many blogs factually inaccurate? Of course. Do some bloggers lack civility and use their blogs to ruin the reputations of others? You bet.

Does this make blogging worse than the traditional media? No: it's just that many bloggers will acknowledge all of the above, while the traditional media simply refuses to acknowledge that it suffers from these same problems.

As for a blogger code of ethics, I think we should pass for now, in the interests of regulatory parity--we can revisit that subject once the traditional media starts to take ethics seriously.

Covering Redundancy

2007-04-10T18:26:00.000-05:00

Paul Horwitz links to two reviews of Kenji Yoshino's spectacular book, Covering. One, by Russell Robinson, is titled "Uncovering Covering", forthcoming in the Northwestern University Law Review. The other is Horwitz's own piece, titled "Uncovering Identity, currently out in the Michigan Law Review's book review edition.

It's A Start

2007-04-09T11:43:00.000-05:00

It certainly doesn't compare to some of the fancy-schmancy venues of my illustrious co-bloggers. But it's a start, and for an undergrad, it ain't bad.

I'm pleased to announce that my article, "When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles," will be published in the upcoming Spring 2007 edition of the Dartmouth Law Journal. Here's the abstract:

Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.

Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.

You can download a draft copy here at SSRN.

David's J.L. & Cool Stuff (Vol. 2--Symposium Call!)

2007-04-08T20:10:00.000-05:00

What's the coolest article title currently floating out there?

I'm going to put forward Anupam Chander & Madhavi Sunder's Is Nozick Kicking Rawls's Ass?, 40 U.C. Davis L. Rev. 563 (forthcoming 2007).

Give your own nominations in comments.

Cigarette Advertising and Web 2.0

2007-04-07T03:13:00.000-05:00

Unlike other industries, cigarette firms have engaged in very little--if any--advertising on the internet. In fact, most cigarette manufacturers do not even have websites for their cigarette brands. The official Philip Morris website, for instance, explicitly states that "[i]t is not intended to market, advertise, promote or offer coupons for [its] cigarette brands." This is not surprising, since the Ciagrette Labeling and Advertising Act (15 U.S.C. § 1335) makes it "unlawful to advertise cigarettes... on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission," which includes the internet.

But then came YouTube:

Of course, it's unlikely that uploading a decades-old black and white cigarette commercial to YouTube will have any impact whatsoever on anyone's smoking behavior. But what about the following example of user-generated marketing:

Are such YouTube videos unlawful under the Cigarette Labeling and Advertising Act? If not, should the act be amended? Would the analysis change if a cigarette company offered these YouTube users gifts (such as an all-expense paid trip to the Marlboro Ranch) without explicitly requiring or encouraging the bloggers to promote their brand online (a la Microsoft's laptop giveaway to bloggers)?

I will address these issues in my essay Joe Camel Meets YouTube: Cigarette Advertising Regulations and User-Generated Marketing
(forthcoming in the University of Toledo Law Review), and potentially on this blog as well.

E-Scholarship

2007-04-06T17:07:00.000-05:00

Peggy McGuiness excerpts from an interesting speech by Nancy Rogers, chair of the AALS and Dean of the Ohio State Law School (Moritz). It's a good read for anyone interested at the next stage of interaction between blogging and scholarship in the legal academy.

Visiting the Supremes

2007-04-05T12:07:00.000-05:00

I'm interested in organizing a small group of students from my law school to visit the Supreme Court in the Fall and observe oral arguments. The Supreme Court's website seems to indicate that access is limited to a first-come, first-serve basis. Does anyone have any experience with this? Any shortcuts?

The Perils of Publishing in Online Law Reviews

2007-04-05T03:48:00.000-05:00

APRIL 13 UPDATE: See follow-up post here.

(Alternate title: Why Author Agreements are Important)

Yesterday afternoon I discovered that the Yale Law Journal's Pocket Part altered an essay I published last year to include a link that refers readers to a webpage that contains false and misleading information about my former employer and me personally. This was done without my consent, and without even contacting me before a decision was made to get my input. I have been told that the Pocket Part did this due to pressure from certain individuals within the Yale Law School community who were upset about perceived inaction by my former business partner on issues that I had absolutely no control or authority over. My essay, which was about the impact blogs have on student scholarship, had absolutely nothing to do with this recent controversy except that it mentioned the position I held at the time in my author byline at the very end of the essay.

I have blogged about online supplements before (see here and here), as has at least one of my co-bloggers (see here). Though many have written about the drawbacks of law journals that are published exclusively online (such as the potential that the site hosting the law journal may one day simply disappear), I do not recall anyone seriously raising the possibility that a law journal may alter an article or the webpage hosting the article out of an animus against the author after publication--likely because no one would consider that a serious academic publication would actually engage in such behavior. Unfortunately, now that it has happened once, I expect it to happen again.

But it won't happen to me. I believe the arguments I make in my papers are important, and I want those papers to be read by the widest audience possible. However, as an author I simply cannot take the risk of publishing in an online journal when there is a very real possibility that some future board will alter my article itself or the webpage containing the article long after publication. Neither I nor any other author should be put in a position where we have to worry that one day we will not be able to refer people to a paper published in an online journal because the page now links to a page whose only purpose is to engage in character assassination and to damage one's professional reputation.

Based on this experience, from now on I will insist that my author agreement contains provisions that explicitly forbid my article or the webpage containing the article from being edited in any way without permission after publication. If an online journal refuses to include such a provision, I will not publish there. Since one never knows when one might end up on the wrong side of the news cycle (or just the wrong side of an Editor-in-Chief), I would encourage other authors considering online journals to take the same protective measures, if only for peace of mind.

I really wish this wasn't necessary since I know from firsthand experience that there are many great online journal editors who do not engage in these underhanded tactics and strive hard to try to get the same amount of respect as print journals. But unfortunately journal boards turn over every year, so there is absolutely no guarantee that future Editors-in-Chief will share the same views as the Editor-in-Chief one deals with during the submissions and editing process.

Law Professor Performs Palsgraf

2007-04-05T03:00:00.000-05:00

The Ethanol Scam

2007-03-30T08:03:00.000-05:00

Of all issues related to global warming and improving the environment, perhaps none is more farcical than ethanol. Jerry Taylor and Peter Van Doren, both affiliated with the Cato Institute, discuss the distortions surrounding ethanol with a new publication entitled "The Ethanol Boondoggle" (pdf) through the Milken Institute. The authors discuss a number of justifications given for government support of ethanol production and use, none of which justify the incredible amounts of cash flowing into the ethanol industry. This cash comes either through direct subsidies or indirectly through tax breaks, consumption mandates, and the like.

It's especially interesting on global warming. Here's just a few teaser facts from the piece:

Federal and state subsidies for ethanol in 2006 were somewhere between $5.1 billion and $6.8 billion. That will soon increase to as much as $8.7 billion annually.This does not include indirect subsidies from consumption mandates, loan guarantees, etc. This compares to federal subsidies for oil, which amounts to well less than $1 billion. (Yes, this doesn't include military spending in the Middle East, but oil prices aren't artificially high because of this spending. This is because the price of oil isn't determined by how friendly a country is, but whether it sells oil on a world market--which every country that has oil does.)
The production costs for a gallon of good ol' USA corn ethanol are on average of $2.53 per gallon. No one would buy ethanol but for the tremendous subsidies.
Achieving "energy independence" through ethanol is a fantasy. Say the authors "If all the corn produced in America in 2005 were dedicated to ethanol production (only 14 percent of it is so dedicated today), it would have reduced U.S. demand for gasoline by, at most, 12 percent." In order to use ethanol 100% of the time we would have had to appropriate all U.S. crop land to corn production and then find 20% more land on top of that.
Even if we were to use pure ethanol in most automobiles, such as is done in Brazil, greenhouse gas emissions would only drop by an uncertain figure of approximately 12 percent. (Remember, it's still burning a carbon-based compound.) The number is uncertain because the production of ethanol (tractors to harvest corn, fertilizer made through the use of hydrocarbons, etc.) adds to greenhouse gas emissions.

One issue the authors do not raise is that the recent love of ethanol has diverted corn from its traditional use--food--and subsequently raised the cost of things like tortillas and animal feed. (Corn farmers might be happy, but ranchers not so much.) The Washington Post has reported that the love of ethanol has tripled or quadrupled tortilla prices in some parts Mexico since only last summer. Tortillas aren't exactly a luxury for most consumers. Ethanol, however, is, at least for our glorious farmers of corn.

As Glenn would say, read the whole thing.

Twenty Five Years of Student Scholarship in Judicial Opinions

2007-03-23T18:14:00.000-05:00

Blake Rohrbacher, a Richards Layton & Finger associate, has uploaded a very interesting study on citations to student scholarship in judicial opinions. You can download it here.

De Novo Looking For Contributors

2007-03-17T22:11:00.000-05:00

I can't take advantage of this, because I still am not technically a law student. But Blog de Novo, one of the pre-eminent law student blogs, is looking for a new crop of contributors to take over the reins now that's its current set of bloggers is graduating.

De Novo is a wonderful part of the blawg community, and I'd hate to see it go defunct.

Why It's a Bad Idea to Try and Stop Global Warming

2007-03-17T15:00:00.000-05:00

I've been meaning for some time to write about how the current global warming dialog is detached from reality. Now, with little else to distract me but the NCAA Tournament in the background, I think I'll take a crack at it.

I'd like to frame the current global warming consensus (i.e., the voice heard loudest in the media and among politicians) as the sum of the following propositions:

(1) Rising CO2 emissions are causing rising world temperatures.
(2) The predominant cause of these rising emissions is human burning of fossil fuels.
(3) The rising world temperatures will cause a great deal of harm to mankind.
(4) The amount of human-induced CO2 emissions may be reversed with (a) not too much pain to mankind (i.e. less than (3) would cause), and (b) to such an extent that world temperatures will no longer rise or will be reversed.

I call this the "consensus" because if any one of these propositions are not believed there is no point in restricting CO2 emissions.

I am fully ready to buy-into propositions (1) and (2). I'm not a scientist so I can't really do much other than read the different summaries of scientific studies, but it does seem logical that humans are releasing a lot more CO2, and that more CO2 would mean higher temperatures. However, with that being said, I am skeptical of (3), and I am convinced that (4)(a) and (4)(b) are utterly fantastical. After reading the following, I invite others, particularly other Movers, to try and refute me. I warn, though, that it will take a lot to convince me that efforts (not just "current efforts" but any efforts) to "combat" CO2 emissions are not the greatest waste of human resources since China unintentionally incentivized its people to not harvest food.

There has been much talk for years about how much of a hike in global temperatures would result from rising, unchecked, CO2 emissions. Some more "skeptical" scientists have stated that it will be less than 2 degrees Celsius by the year 2100. Others estimate it will be much higher, possibly as high as 6 degrees Celsius, or more. The difference between 2 and 6 degrees is quite profound. Warming of 2 degrees might result in some rise in sea level, changes in farming cycles, and the like, but nothing that humans can't adapt to in their usual course of business (i.e., as they adapt to other changes in the environment and society). However, changes of 6 degrees would be much more challenging, perhaps triggering some of the doomsday scenarios we sometimes hear about, such as the flooding of entire countries and mass famine. I tend to think that the lower range projections are more in-line, particularly because a group that few have accused of being in the pocket of the vast right wing conspiracy, the U.N. Intergovernmental Panel on Climate Change, estimate that the rise in sea levels will be between 19 and 59 centimeters by 2100. That's a rise, but nothing that will bury nations beneath the oceans. (To be fair, the Panel states that sea levels will continue to rise after 2100, perhaps more than 80 centimeters by 2300, but that's a heck of a long way away to be basing policy upon.)

But even if the truth is closer to 6 degrees than 2, I don't see a good reason for pursuing policies mandating a drop of CO2 emissions. This is because of the "dirty little secret" that almost no one is talking about: a meaningful reduction of emissions--enough to actually stop an increase in temperatures--would be of such a degree that it would cause more suffering than a rise in temperatures would.

One fellow who has been talking about this "secret" is Robert J. Samuelson of Newsweek. He points out that the only way to actually combat "warming" is for massive cuts in CO2 emissions. That just won't happen because:

In 2004, world emissions of carbon dioxide . . . totaled 26 billions metric tons. Under plausible economic and population assumptions, CO2 emissions will grow to 40 billions tons by 2030, projects the International Energy Agency. About three-quarters of the increase is forecast to come from developing countries, two-fifths from China alone.

These countries won't cut their economic growth, continues Samuelson, because they only account for a fifth of current emissions and are more concerned with things like electricity for their populations than climate change. In addition, the use of alternative fuels will only slightly lessen the rise in CO2 emissions. Alternative fuels just do not offer enough to effectively slow or cut emissions. In another piece, Samuelson states that even if we adopt all manner of policies to cut emissions, such as alternative fuels, plus higher fuel standards, plus using less coal, emissions will still rise by between 6 and 27 percent by 2050.

More importantly, however, is what people are missing on how much we need to cut emissions to actually prevent warming. The figure quoted varies, but in general emissions would have to be cut somewhere upwards of 70 Percent to actually avert rising temperatures. Unless we have unforeseen technological breakthroughs, that would mean near-totalitarian like controls on human activity. If actually successful, which given the success of governmental programs it likely wouldn't be, would wreck western economics and abort developing countries' efforts to grow out of extreme poverty. It's something that countries won't try and do--and thank God they won't.

In short, a cut in anything near 70% of CO2 emissions would be more devastating to humanity than a 6 degree rise in global temperatures. And, since we will probably have warming unless we have something like a near 70% cut in CO2 emissions it's a choice of one or the other. A feel-good Kyoto-like policy, where we have controls such as higher gas taxes and ethanol subsidies, will do nothing for warming, and only serve to line the pockets a few insiders (e.g., corn farmers, some of the plaintiffs' bar, etc). It won't actually cut global warming, the whole point of the exercise.

Therefore, given these two real choices I vote we do nothing, move to higher land if necessary, try to get richer in the meantime so we can afford to do so, avoid the massive growth in bureaucracy that the global warming movement threatens to initiate, and get on with our lives. Now, I could be wrong about some of these figures, and I'd like to hear how. But if they're right I don't see "what all the fuss is about." Any thoughts?

The First CLS President?

2007-03-14T03:54:00.000-05:00

What does President Bush's legal....creativity imply about the Critical Legal Studies movement?

GUNS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

2007-03-09T11:19:00.000-06:00

WOW! Today the U.S. Court of Appeals for the District of Columbia made bigger news than even I had thought it would in Parker v. District of Columbia. Contrary to all other Circuits to have addressed the issue, save for the Fifth Circuit, the court found that the Second Amendment protects and individual right to keep and bear arms. As I stated earlier, this is BIG, REALLY BIG. See coverage here.

UPDATE: Eugene Volokh has some interesting thoughts on the timing of an appeal from the decision, similar, but more detailed, to mine from my previous post. Also, it bears pointing out that although the Fifth Circuit adopted the individual right interpretation of the Second Amendment in the Emerson decision, it did not strike-down the law in question. Today's case did. To my knowledge this is the first time in history that a federal appellate court has struck-down a gun control law on Second Amendment grounds.

It also should be noted that our Grand Master has different views from those of the D.C. Circuit. I wonder what his reaction to today's news is?

AI Busted for Unlicensed Practice

2007-03-06T17:20:00.000-06:00

One of my first posts was directed to the Law Underground, a site where one can go, answer a few questions, and receive legal advice.

Apparently, judges are not as welcoming of our new robotic overlords, however...

A Wired blog post talks about a judge's ruling that a website offering free legal advice on bankruptcy law was "practicing law without a license."

I can only assume that, as time goes on, more and more of the legal profession is going to become automated. And it's not like there isn't a dearth of legal info out there for the public.

As a law student, let me do what we're taught to do best... That is, take a logical point and stretch it to the very limits of sensibility. What would happen if someone made a book, a la Choose Your Own Adventure. For each variable, you flipped to a certain page...

Do you...
Have dependents? TURN TO PAGE 45
Owe Money to the Government? TURN TO PAGE 63
Want to open the crypt of doom? TURN TO PAGE 157

Besides being ridiculously large, and just plain silly, how would this book be any different from Law Underground, or the 700law.com website mentioned in the Wired article?

Coming back to the real world, if Mr. Ihejirika was not merely an "internet entrepreneur," but a lawyer, as well? Would this type of automated program, created by him, constitute unlicensed practice, since the lawyer would actually be the person originally doing the work? i.e. is this a finding of the AI practicing law unlicensed, or Mr. Ihejirika?

Off The Case

2007-03-04T23:57:00.000-06:00

Cross-posted to The Debate Link

The folks handling our oh-so-fair military commissions appear to be going for another Swift-Boating. From the International Law blog Opinio Juris:

I have written before about the Bush Administration's war on attorneys who defend individuals accused of terrorism. (See here and here.) A new front has now been opened in that war, with the chief U.S. military prosecutor accusing Major Michael Mori, who is representing David Hicks -- the Australian scheduled to be the first GITMO detainee tried by military commission -- of violating the Orwellian article 88 of the UCMJ, which prohibits the use of "contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession."

This "charge" could force Major Mori off the case, not only indefinitely delaying the trial, but depriving Mr. Hicks of an attorney he knows and trusts. As Major Mori notes, the mere threat of legal prosecution creates a conflict of interest that may prevent him from providing the most effective representation possible.

Comment & Article Submissions

2007-02-25T16:18:00.000-06:00

I am currently reviewing submissions for my journal, so I wanted to offer a tip to professors/students/practitioners who are considering submitting their pieces to journals. I find myself asking two questions whenever I read a submission, and the high quality articles invariably address them: Why now? So what?

1. Why now? Let the reader know what makes your article particularly timely. The subject matter certainly does not need to dominate current legal discussions, but keeping this simple question in mind will help you reach out to journals that are seeking to make an impact on the development of the law, assert/maintain relevance to continuing legal debates, and it will generally provide the reader with a more refined understanding of the scope and application of your particular argument. Include this in your cover letter, as it will help the editor who is reviewing your submission keep the argument in context.

2. So what? Articulate the logical extensions of your argument and what jurisprudential impact the argument will deliver. Never lose sight of this, and again, include it in your cover letter.

The sheer number of submissions, facilitated by programs like ExpressO, will make it more likely that a quality article will not get the attention it deserves if the author does not take full advantage of a cover letter that can clearly & succinctly answer the two questions above. By no means are these the only considerations an articles editor should keep in mind, but an author does herself an injustice by not clearly outlining them in either an abstract or a cover letter.

Any thoughts on this? Other journal editors have suggestions?

Title First, Content Later

2007-02-22T02:52:00.000-06:00

When I was a kid, I had a book about the Nickelodeon show Double Dare (does anyone remember that show?). One of the "facts" they told us was that the show's staff often thought of titles for their games first, and then tried to figure out a viable game to go with the title.

I admit I have had similar instincts when it comes to law articles. I am currently overcome with the desire to write an article with the title "Bringing the Sexy Back: [insert actual topic here]." What the subtitle will be, and thus the article will be about, I have no idea (Pornography? Sexuality in the law?). But I really want to write an article with that title.

Complexity and the PHOSITA

2007-02-21T15:30:00.000-06:00

Ever thought of how complex adaptive systems relate to the issue of obviousness in patent law? Me neither, until recently. As many will be aware KSR v. Teleflex is currently before the United States Supreme Court, with a decision due any day. The case focuses on the role of persons having ordinary skills in the art (PHOSITA) in the obviousness analysis. In Canada, we’ve had a decision from the Federal Court of Appeal on the issue (Apotex v. Sanofi) as well. Unfortunately, obviousness was only part of the case before the court, and the issue did not receive a lot of attention in the decision. Following older United Kingdom jurisprudence, the current Canadian law holds that the PHOSITA is a completely left-brained creature who possess not even a “mere scintilla” of inventiveness. The PHOSITA is seen to be this way even though, at least in the case of global biomedical firms, he or she is part of one of the largest most sophisticated industrial sectors.

As someone who spent years in the lab prior to going into law, I took issue with this de-contextualized view of scientists. Using the tacit/focal knowledge framework of Michael Polanyi and actor-network theory of Bruno Latour, I analyzed the inventive capacity and identity of the pharmaceutical PHOSITA and the ability thereof to best assist the court in determinations of obviousness in pharmaceutical litigation.

The result is a paper due out in the University of Ottawa Law & Technology Journal this spring (Living Separate and Apart is Never Easy: Inventive Capacity of the PHOSITA as the Tie That Binds Obviousness and Inventiveness in Pharmaceutical Litigation) arguing in favour of a normative construction of the PHOSITA and a “purposive test” for obviousness. The proposed test focuses on the essence or “pith and marrow” of the invention rather than binary notions of scintilla/no scintilla of inventiveness, whether the PHOSITA would/could have derived the invention, or whether the research leading up the the invention was routine/not routine.

I welcome any suggestions and comments on the work from fellow bloggers and patent scholars and practitioners.

Fellowships and VAPs

2007-02-15T15:06:00.000-06:00

FYI for "First Mover"-Types: There's a very interesting post by Glenn Cohen, guest blogging at Prawfs, on the pros and cons of fellowship and Visiting Assistant Professor (VAP) programs for prospetive legal academics. If you're thinking about such a program, e.g. Bigelow at the U of Chicago, the Freedman program at Temple, it's a "must read." One thing that struck me in reading the post and the comments is how obtaining a J.D., PhD, and spending any time in law practice hardley ever happens. If someone gets a J.D. and then practices for anything longer than a cup-of-coffee there just isn't enough time in an average life-span to also go through 6 years of graduate school to get a PhD (Glenn says "4-6", but "4" is quite optimistic in today's graduate schools, at least in the humanities). A fellowship or VAP is a good way to split the difference.

Evil Admissions Director

2007-02-14T18:07:00.000-06:00

In my more inhumane moments, I fantasize about what it would be like to be an evil admissions director at a college or university (I applied to Carleton early decision, so it's not a vendetta against not being admitted to my favored college. But it might be pre-emptive revenge against forthcoming law school rejections). Some of my ideas are rather banal (like placing Dante's slogan "Abandon all hope, ye who enter here" above my office door), others are more twisted (like putting packing foam in rejection letters). But most recently, I've come up with one that is both sadistic and substantive: Asking in the interview for the applicant to explain, as best s/he can, why s/he should not be admitted.

It actually serves a useful purpose--it shows the applicant can argue under high stress situations for a side they disagree with, and shows how well they recover when flustered. So it's evil for a reason.

Then, when they're finished, I can lean back on my chair and remark: "That was really compelling. Thank you, I think that will really help in our decisionmaking process," and end the interview.

Of course, I'm a bad person.

creating an academic research agenda

2007-02-14T12:12:00.001-06:00

I just attended a small forum on the creation of a research agenda. I'll skip naming the profs involved because I'm sure my notes will be atrociously misrepresentative of what they actually meant and said, but I thought it would be worth sharing my notes on their talk, and asking for contributions and tips from others who are starting or have started down the road towards academia.

So without further ado, their anonymized thoughts:

One prof distinguished between Research Agenda- the 2-4 page document you present during a job search- and the research agenda- your bigger vision. I'll keep the capitalization distinction in these notes, for lack of a better term.
Noted that you must be passionate about your research agenda, so figuring it out can involve answering the question: what is your interest/vision? What is on your mind all the time? what questions can't you find answers to? what confuses you (once you're certain that no one else can clarify the confusion)?
keep a diary/location where you put ideas/files/cases/etc. that tie together- write in it when you have the idea, not later, even if you only write briefly. This will help you understand your vision to create the research agenda, and give you a resource when you want to write the Research Agenda. One prof noted that keeping it all on your computer means you can use Google Desktop to search through it; [Ed.: I think I'll be experimenting with doing this in a wiki; I've been capturing it already. Zotero also looks interesting for this.]
look for themes in your interests and studies- both in law school and outside, either in your personal interests or in your past work, like your undergraduate degree or research you did in between. These themes are likely to prove interesting and fruitful.
the profs note that it is useful to read works in progress, to keep up-to-date, to see what works in progress look like, and occasionally to build connections by writing useful corrections.
hiring committees are going to project you forward ten years and ask 'is this person going to have made a difference?' Making a difference is hard to do if you're scattered; even harder to convince the hiring committee of that. So your agenda has to have coherence, in methodology, in topics, and/or in broader area. Noted in questions that you can avoid one of these- like, have a consistent methodology that you apply over multiple domains- but you might still be disadvantaged by not having ties to a specific topic.
suggestion that you think about three as the right number of projected papers in your Research Agenda- more and you're a braggart, and they likely won't happen anyway.
Early on, don't get too specific; don't get too broad- you're not going to revolutionize legal scholarship in your first article. Your ambition is to coin buzzwords that stand for actual original ideas that become branded to you. (Other professor said she 'wasn't that cynical yet' and that if one wants to coin buzzwords, one should avoid going overboard.)
Seminar papers are a good starting point for your first paper- you've already written it; it is a good chunk of the length; it has been already vetted and argued over once.

I have no idea if I want to go into academia, but I do want to read and write in a directed way over the next two years. So I thought lots of this was useful, and I'd love to hear if others have tips and suggestions along these lines.

[Picture is a law library in the early spring; available under the CC-SA license.]

Class Participation and Justice Alito

2007-02-14T08:04:00.000-06:00

A story on yesterday's AP wire reports on Justice Alito's remarks at the University of Alabama. (HT HB.) Alito remarked on how hard it can be for him to get a word in at oral argument, and played voice samples Justices Breyer and Scalia, including one by Breyer about the raccoon who broke into his garage. (Note: Why can't the oral arguments in my court be more like that?) Alito also said there can be no substitute for oral argument in helping judges get to the issues. Neither written filings nor modern technology will be able to replace it.

I found this somewhat surprising because oral argument seems to have increasingly become a lost art in most district courts, with many judges eschewing extended oral argument altogether. Also, more and more appellate courts, federal and state, decide cases on the briefs alone, and this isn't only because of volume, but sometimes because the judges think the cases just aren't "interesting" enough. I believe Alito's point is largely true, however, as I've found I can tell judges important points while standing in front of them that I wouldn't have thought of but for their questions. I also think this is an argument in favor of the Socratic method we despise so much in law school. The ability to regurgitate "what this case is about" when called-on without warning isn't just a form of upper-middle-class torture. It's a skill that lawyers actually should learn, and that will come in useful. Now, you could argue that you'll be a transactional lawyer your whole life, and don't need that skill, but then why do criminal lawyers have to take contracts? It's something central to the legal canon, and arguably should be taught to all prospective lawyers. Perhaps the Socratic method isn't the best way to learn it, but it beats hour-long lectures only interrupted by "the volunteers."

Fashion Court

2007-02-13T03:29:00.000-06:00

Blog de Novo has the proceedings thus far in People of the University of Chicago Law School v.
Lior Jacob Strahilevitz, alleging before the Supreme Fashion Court that, in lecture, Professor Strahilevitz wore "a grossly unmatched tie and shirt combination to his employment, to wit: a white dress shirt with vertical dark-blue stripes and a baby-blue tie with diagonal stripes."

Strahilevitz has filed an answer and a counter-claim, along with a request for the Chief Justice to recuse.

The legal world will undoubtedly follow these developments with bated breath.

Get a Life

2007-02-12T23:10:00.000-06:00

I may be writing a seminar paper on a related topic, so I was curious if the FMers had any particular insight on the creation of "Get" laws by the state to accomodate Orthodox Jews. Basically, in Jewish law, a woman cannot get remarried unless her Husband grants her a "get", or a Jewish divorce. Women whose husband's--through neglect or malice--do not obtain a "get" are referred to as "chained," they cannot get remarried, but their husband's are quite free to. The law being proposed in Maryland would mandate that a husband give his wife a Get before being granted a civil divorce.

At the moment, only New York has such a law on its books, and it was upheld against a First Amendment challenge in Avitzur v. Avitzur, 58 N.Y.2d 108; 446 N.E.2d 136; 459 N.Y.S.2d 572 (1983), cert. denied 464 U.S. 817 (1983). But of course, other jurisdictions could disagree.

Any thoughts--constitutionally or pragmatically speaking?

NOLA Public Housing Case Moves Forward

2007-02-09T17:45:00.000-06:00

The Times Picayune reported that Judge Lemelle of the Eastern District of Louisiana refused to dismiss a class action suit against the Housing Authority of New Orleans ("HANO") and the Department of Housing and Urban Development. In writing the February 8, 2008 opinion, Judge Lemelle found that demolishing the public housing units -- which plaintiffs contend require only minimal repairs -- violates "parts of the Fair Housing Act and the U.S. Housing Act that protect renters from unfair eviction."

The decision does not, however, prevent HANO from moving forward with the demolition of the complexes. The court also rejected arguments based on international law alleging human rights violations, as well as a allegations of racial discrimination. To the latter point, Judge Lemelle held that "it appears that plaintiffs' efforts to return to developments that were populated entirely with African-Americans pre-Katrina may actually perpetuate segregation more so than HANO's plans for demolitions and redevelopment . . . ."

A copy of the complaint is available here. Plaintiff's motion for preliminary injunction is available here, and the court's denial of the motion is here. Justice for New Orleans, run by the Loyola Law Clinic, posted the above documents on their website.

* Photo of abandoned St. Bernard public housing project, courtesy of Flikr. Cross-posted at ULJ.

Northwestern SBA President Forced to Resign for Not Practicing Affirmative Action

2007-02-06T14:38:00.000-06:00

Or so his resignation email claims. Excerpts with background information available here and here.

UPDATE: The complete set of emails that describe the whole situation are available here. The Wall Street Journal's law blog has additional information here.

Law Review Alumni Boards

2007-02-06T09:43:00.000-06:00

The Seton Hall Law Review is considering forming an Alumni Board. Does anyone have experience with this? I'd love to hear any comments/criticism that students may have from other journals.

Return to Starrett City

2007-02-02T08:51:00.000-06:00

A New York Times article reviews the proposed sale of Starrett City, the housing complex that used a race-based application process to ensure a racially and economically diverse residency. The vetting process was subject to a court challenge, U.S. v. Starrett City Assocs., 840 F.2d 1096 (2d Cir. 1988), ending in a repudiation of the program by the Second Circuit. Both pieces are great reads, if for no other reason than to see the efforts taken to provide at least some refuge from gentrification.
And on the topic of gentrification, Fortune Magazine reports on the community of Briny Breezes. Briny is a seaside 43-acre trailer park about 60 miles north of Miami, and is claimed to be "the last significant piece of beachfront property in the area without mansions or a luxury high rise." Homeowners, who paid about $100,000 for a trailer a few years ago, will net a little more than a million dollars each -- provided the purchaser gets municipal approval to develop the land.

* Top photo courtesy of NY Times; bottom: Fortune magazine.

University of Michigan Law School sued for Civil Conspiracy

2007-01-25T16:46:00.000-06:00

... and intentional interference with prospective business relations, and a whole host of other things, by a disgruntled recent unemployed graduate (who is also suing his summer associate firm).

Complaint is available here.

Discussion thread is here.

Running a Law Review like a Business

2007-01-25T05:50:00.000-06:00

My recent post on online law review supplements resulted in some interesting responses both here and on Volokh. In particular, my First Movers colleague Luis Villa has asked me to elaborate more on how law reviews should "think like a business."

I could easily write hundreds of words on this issue, but in the interest of brevity I'll simply point to Jeff Harrisson's excellent post on perfect law school product development at the always excellent MoneyLaw blog. Though Jeff's analysis can apply to everything from LL.M. programs to research institutes, I think it applies particularly well to online law review supplements. This paragraph from Jeff's post is particularly insightful:

Auto makers with massive market studies make mistakes with respect to their product lines. So do clothes designers, pharmaceutical manufactures, and restaurants. Yet law professors, to hear them tell it, get it right nearly every time they introduce a new product. There is a possible explanation. In conventional markets, demanders and suppliers occupy different sides of the market. Law faculties tend to occupy both sides of the market – they supply the programs that they demand and are lucky enough to pay for what they demand with the money of others. Think I’m wrong on this? If so, when is the last time you heard someone proposing a new program say, “I am not personally interested in this but I am proposing it because I believe it is something the school ought to do.”

As I mentioned in my earlier post, the premise of online supplements is inherently flawed. Law journals do not need to be more timely -- in fact, one could make the argument that (blog/newspaper-like) timeliness and scholarship are mutually exclusive. Even putting the timeliness issue aside, there has never been any need to "bridge the gap between legal scholarship and blogs" -- yet for some reason the Michigan Law Review, University of Pennsylvania Law Review, etc. thought this was some sort of high priority that necessitated the creation of online supplements. Similarly, proactively choosing to exclusively publish online (and trying to spin that as a positive to boot!), using weird names and citation formats (seriously, is there anyone out there who actually thinks 155 U. Pa. L. Rev. PENNumbra 74 would look nice on a CV?), and other odd behavior that all likely contribute to people like Doug Berman having to question whether these things are actually scholarship indicates a fundamental misunderstanding of both the product and the target audience.

All of these issues could easily have been prevented if journals thought like a business. Thinking like a business isn't hard, at least not in this context. It's just a matter of asking questions like:

Why is an online supplement necessary?
Is that reasoning valid?
Are there any other things out there that fulfill the same purpose?
What value would we add by getting into that market?
What other things could we do with the money / manpower / etc. besides an online supplement?
Given the other things we can do, is this really the best use of our finite time and resources?
Who would use an online supplement?
Are online supplement users the same people as our main product's users? Who are our main product's users anyway?
What would attract or alienate those people from using our supplement?
What do we do if another (or thirty, or hundred, or five hundred) journal(s) decide to copy our idea and create online supplements that do the same thing?
What sort of impact will this have on our main product?
What's our exit strategy if things go wrong?

Answering these questions (and many others) honestly could have avoided a lot of pitfalls -- not just with online supplements, but with virtually all journal issues. None of this is rocket science or particularly difficult. Thinking these things through would avoid a lot of idiocy like "155 U. Pa. L. Rev. PENNumbra 74" and publishing exclusively online, as well as redirect some journals towards more efficient outcomes ("Hey, it looks like we could fulfill our actual goals by co-opting an existing blog instead of trying to make some blog/journal hybrid that possesses the worst qualities of both media.").

Of course there are more overt ways that law journals should act as a business. For instance, Christopher Yeung, one of the masterminds behind Virginia Law Review's In Brief, posted this over at Volokh:

Why don’t we publish In Brief articles in our print edition? Yes, doing so may increase the quantity and perhaps prestige of online publications, but that does not necessarily translate into quality. Additionally, adding 30 pages of additional content may not seem like much, but it does increase costs in a noticeable way. Finally, printing these articles does not address a major problem plaguing law reviews today: the problem of lost scholarship. While we were looking into creating an online companion, I spoke with many professors who found it unfortunate that so few people actually read law reviews in print. Indeed, including our online content in searchable databases like Lexis and Westlaw is probably more important, and we can do so even without the cost of printing an additional 30 pages per issue.

I have a lot of problems with that statement, ranging from the claim that it's "unfortunate" that so few people read law reviews in print (talk about a non-problem!) to the odd statement that greater prestige won't result in greater quality (newsflash: people who write high quality short works are not going to want to publish it in an unprestigious forum when more prestigious options are available). However, I think this paragraph betrays a fundamental problem with how law reviews operate. Let's take a look at the various problems here:

Okay, so for some reason your journal--one of the richest in the nation--is able to afford to print 2000+ pages per year but simply cannot afford to pay for an additional 30 pages. I don't buy this, but let's say it's true... why is it that the only option is adding 30 pages rather than replacing 30 pages?

Last year the Virginia Law Review published 12 articles, 22 essays, 11 notes, and 1 book review. If "In Brief's" content is such a wonderful thing, why not just publish 1 less essay, or 1 less student note, and publish all of "In Brief" in print?
And if publishing an extra 30 page student note is a better use of journal space than pubishing 30 pages of "In Brief," well, that says a whole lot about how unnecessary this whole "In Brief" project is, doesn't it?

Alright, let's assume Virginia's current content is just so wonderful that absolutely nothing can be cut, ever... so how about getting additional money to publish "In Brief"?

The Virginia Law Review's stream of revenue could be greatly increased if it adopted a price discrimination model: charging different prices for individuals and for institutions. The Virginia Law Review is in an excellent position to price discriminate, since the demand for the most prestigious law journals is inelastic for institutions with large budgets, such as law libraries. Law libraries are highly unlikely to cancel a subscription to a given journal if there is a price increase--even a large one. In contrast, individuals have more elastic demand curves, and are more likely to cancel a subscription due to price sensitivity.

Most peer-reviewed journals have already adopted price discrimination, with some charging highly exorbitant fees. A few examples include the Journal of Empirical Legal Studies ($265), the Food & Drug Law Journal ($299), and the Election Law Journal ($510). But perhaps most significantly, the Harvard Law Review has moved to a price discrimination model, charging $200 for institutions, $95 for non-profit institutions, and $75 for renewal orders from non-profit institutions.
I don't know what Virginia Law Review's subscriber base looks like, but I'll assume it's similar to the University of Pennsylvania Law Review. Penn L Rev has about 1,056 subscribers, and though I don't know the proportion of instititional subscribers, we can conservatively estimate that 190 of those subscribers are law libraries with inelastic budgets and the rest are individuals.

What might happen to Virginia Law Review's revenues if it adopted various price discrimination points? Let's take a look:

Price Discrimination: Revenue Possibilities

$75 institutional rate, $50 individual rate (matching Harvard)

$90 institutional rate, $50 individual rate

$150 institutional rate, $50 individual rate (doubling Harvard)

190 institutional subscribers, 866 individuals

+ $4,750

+ $7,600

+ $19,000

250 institutional subscribers, 806 individuals

+ $6,250

+ $10,000

+ $25,000

500 institutional subscribers, 556 individuals

+ $12,500

+ $20,000

+ $50,000

As the chart illustrates, simply matching Harvard's model could lead to a revenue increase ranging between $4,750 and $12,500 depending on the number of institutional subscribers in the law review's subscriber base, and adopting a more aggressive price point (as many peer reviewed journals have done) would result in even greater revenue increases. Keep in mind that these sort of subscription rates are completely standard in all other disciplines besides law.

Of course, additional revenues the journal may raise could go towards other things instead of adding 30 pages to the print version of the law review (for instance, the higher revenue from institutional subscriptions could be used to significantly reduce the individual subscription rate, thus encouraging more individuals to purchase subscriptions and read the print version). But if putting "In Brief" in print is such a low priority or somehow undesirable, does not say quite a lot about the quality of the supplement?

Wow, this post ended up being a lot longer than I expected. Comments would be greatly appreciated, particularly if you read through this whole thing.

Read this Book!

2007-01-24T13:20:00.000-06:00

And if you (really) have to, steal it. It's Jan Crawford Greenburg's Supreme Conflict, and only having read the first third I must con-kerr with Orin Kerr that it's really really, I mean just fascinatingly, good. The chapter on Justice Souter (and that's all I've read through so far) is particularly filled with intrigue.

Five Tips for Law Review Online Supplements

2007-01-24T10:10:00.000-06:00

Orin Kerr and Doug Berman have used the launch of the Virginia Law Review's "In Brief" as an opportunity to raise some interesting questions about law review online supplements here and here. Rather than asking questions, I'm going to take this opportunity to provide some unsolicited advice to the people behind these online supplements.

1. The premise of online supplements is inherently flawed.

These supplements were created as an attempt to make law reviews more "timely," "accessible," and to "fill the gap between the blogosphere and the traditional law review article" (I hadn't even realized that there was a gap, let alone that it needed to be filled). But this premise is inherently flawed -- in fact I'd go so far as to say that law students who believe "timeliness" should be a significant priority of law journals have a fundamental misunderstanding of the purpose of legal scholarship. As I have discussed previously here, a journal's timeliness is rarely a consideration for its readers.

Law journals are not magazines; very few individuals (other than the unfortunate soul whose job it is to proofread the thing before publication) reads the Virginia Law Review from cover to cover. Rather, most articles are read individually, often many months or years after they are initially published. An attorney is generally not going to care about some law review article discussing the implications of Benslimane v. Gonzales until she's confronted with a situation where that case is somehow relevant. It's at that point where she might search the electronic database of her choice for articles that discuss the case. This isn't a bad thing: it's simply how legal scholarship works.

Of course, scholars have an interest in getting timely access to papers before they're published -- but aren't there already multiple places where you can get access to tomorrow's research today?

Furthermore, it makes little sense for the Virginia Law Review to try to become more timely. Blogs, the news media, and other outlets have an inherent advantage in the "timeliness" area, and nothing a law journal can do will make it more timely than those institutions. In fact, given that blogs, the news media, etc. already do such a great job providing fast news dissemination and analysis, it's unclear why law journal innovators would even want to enter that market, particularly when the primary product that law journals produced has many many flaws with it that should be corrected first.

2. Stop treating your online supplements like the red-headed stepchildren of legal scholarship

Newsflash: if Doug Berman needs to ask other law professors "whether they believe that [articles published in online supplements are] generally 'counted' in any assessment of their scholarly productivity," it should go without saying that your online supplements are broken and need substantial fixing (or perhaps outright elimination). In fact, given that law journal editors seem to have done everything they possibly could have done to make online supplements not be taken seriously, it's amazing Professor Berman even bothered asking this question at all.

How are online supplements the black sheep of legal scholarship? Well, just compare them to the rest of legal scholarship:

a. Ridiculous citation format

Online supplements have the oddest citation formats I have ever seen. Just take a look at some of these things:

Abraham Bell & William Burke-White, Debate, Is the United Nations Still Relevant?, 155 U. Pa. L. Rev. PENNumbra 74 (2006), http://www.pennumbra.com/debates/united_nations/un-full.pdf.
Randal C. Picker, Of Pirates and Puffy Shirts, Va. L. Rev. In Brief, Jan. 22, 2007.
Anthony Ciolli, Much Ado About Nothing: Why Student Scholarship Has Nothing To Fear from Blogs, 116 Yale L.J. Pocket Part 210 (2006), http://thepocketpart.org/2006/12/18/ciolli.html.
Stacey L. Dogan, What Is Dilution, Anyway?, 105 Mich. L. Rev. First Impressions 103 (2006), http://www.michiganlawreview.org/firstimpressions/vol105/dogan.pdf.

Who would want to have an eyesore like 155 U. Pa. L. Rev. PENNumbra 74 on their CV? I certainly wouldn't. I still cringe when I see 116 Yale L.J. Pocket Part 210 on my own CV.

Here's a thought: how about just using 155 U. Pa. L. Rev. 74? After all, PENNumbra is a part of the U. Pa. L. Rev., right? So how about treating it as such instead of treating it like a second class publication. And on a similar note...

b. Publishing exclusively online is NOT a good thing

I'm not sure what I find more amazing -- the fact that some very prestigious law reviews are trying to spin an online-only supplement as some sort of big advantage, or that those law review editors think law professors, law students, practitioners, etc. will actually believe that publishing online is more prestigious than publishing in print. Can anyone name even one law journal that, when given the choice between publishing in print [with law school funding] and publishing online? I can't... in fact, I can name more than a dozen online journals that would absolutely love to publish in print but are stuck publishing online because of money reasons.

Yeah, publishing online theoretically has some advantages -- but is there any question that publishing online *and* in print is far better? The Virginia Law Review publishes almost 2000 pages per year -- is it that difficult to stick in another 30-50 from the online supplement, especially given that those pages have already gone through the same editing editing process as all the other pages in the print version and thus sticking them in the print version would involve shockingly little additional work?

Does anyone think Professor Berman would have to question whether supplement commentary "counts" as scholarship if those essays appeared in the print version and had a normal citation format? I don't.

3. Aren't online supplements supposed to be... supplements?

Go visit YaleLawJournal.org, VirginiaLawReview.org, and PennLawReview.com. Do you get the websites of the Yale Law Journal, the Virginia Law Review, and the University of Pennsylvania Law Review? No... you get the Pocket Part, In Brief, and PENNumbra. If these things are just supplements, why have they displaced the journal's entire website?

4. If you want to compete with blogs, go and compete... with blogs.

Sorry Michigan Law Review, but you're not going to "fill the gap between the blogosphere and the traditional law review article" by sticking a couple of solicited essays on your website eight times a year with no method available for user comments. And Virginia Law Review, don't expect In Brief to become bigger than Volokh when you won't even consider submissions between mid-October and late February.

Here's a thought: if you want your law journal to, for whatever reason, compete with blogs, how about actually competing with blogs? Independent blogs are increasingly becoming affiliated with pre-existing organizations. For instance, just a couple of weeks ago the Empirical Legal Studies Blog became the official blog of the AALS Section on Law and Social Sciences.

So, if you want to become timely like a blog, or "bridge the gap" between law reviews and blogs, how about making your "supplement" an existing law professor blog? I'm sure "Virginia Law Review's Concurring Opinions" would meet Virginia Law Review's goals a lot better than "Virginia Law Review's In Brief."

5. Think like a business.

If law review editors viewed law reviews as a business (or something that has the potential to be a business), I'm fairly confident that virtually all of the problems plaguing law reviews could be avoided, including all the issues stemming from online supplements. This sort of analysis is not that hard to do, and is ultimately far less time consuming than creating an online supplement just because Yale did it or because blogs are all the rage among law professors.

DNA testing in NY State

2007-01-24T08:58:00.000-06:00

Roy Brown is now the eighth New Yorker in the last thirteen months to be exonerated based on new DNA evidence. Mr. Brown previously served eight months for threatening a social worker who ordered Mr. Brown's daughter to be removed from his home. Days after his release, a different social worker was found brutally murdered, and Mr. Brown was later convicted. He conducted his own investigation from behind bars, and ultimately determined the true killer to be Barry Bench, whom investigators overlooked because the lead investigator thought he was incapable of killing anyone. Days after Mr. Brown sent a letter to Bench accusing him of the murder, Bench took his own life.

Mr. Brown lost fifteen years of life behind bars. He was lucky enough to be greeted by friends and family upon release.

The judge that ordered his release offered an apology -- but should anything be offered to those convicted of crimes they did not commit? What result if the conviction rests on prosecutorial misconduct or other governmental malfeasance?

Blogging in Fear

2007-01-23T22:11:00.000-06:00

As I sit here tonight "blogging" as if it's something as mundane as BS-ing with a co-worker about the news of the day or posting a message on a bulletin board (the old fashioned variety), I think of Abdelkareem ("Kareem") Nabil Soliman. He's an Egyptian blogger who goes on trial this Friday for, well, blogging. He allegedly criticized President Mubarak and "religion" on his Arabic-language blog, was arrested in November, and now faces 9 years in prison.

There's an online signature drive to free Kareem available here. His story is something to remember as we ruminate in our pajamas without worry that our lives will be ruined based on the universally-available words that we write. With friends like Mubarak, who needs enemies who hate freedom? (HT--Big HT--to Tom Palmer.)

Simpson Thacher Raises First Year Associate Salaries to $160,000

2007-01-22T17:09:00.000-06:00

See here.

What do you mean, "impossible?"

2007-01-21T18:03:00.000-06:00

When presented with alternative proposals — for example, arguments about what kind of constitutional arrangement the United States ought to have — how can one go about evaluating arguments about the likelihood or practicability of the alternatives? How do you evaluate an argument that because one proposal or set of proposals is impossible, an alternative is more likely to be true or more desirable? You've probably encountered arguments that take the form:

The three alternatives are X, Y, and Z. X and Y are impossible, therefore Z is more probable (or desirable) than X or Y.

I'd try to reduce that to symbolic notation, but I'm not sure how to go about writing the appropriate HTML, and in any event once I'd gotten started we'd find that those assertions contain some ambiguities. I'd try to analyze. It would get complex. You'd get bored. (I probably would, too.) The resulting mess would illustrate a problem — there are a lot of invalid or at least unsound arguments out there about the possibility or impossibility of this, that or the other.

The point of all this is to draw your attention to Lawrence Solum's working paper, Constitutional Possibilities. In that paper, Solum describes a "conceptual toolkit" one might use to evaluate arguments that either implicitly or explicitly depend on claims about what is or is not possible. Solum argues that certain conceptual tools that have been useful in economic theory (such as the notion of second best), philosophy (particularly possible worlds and related tools of modal logic, where "modal" means "about possibility"), and other theoretical fields can improve the articulation and evaluation of arguments among constitutional theorists.

Solum also recommends three "Standards for Modal Constitutional Arguments": First, when one makes claims about possibility or impossibility, one should articulate the kind of possibility one is referring to, because there is more than one. Second, when one rejects a proposition based on its impossibility, one should explain why. Finally, when one argues against an alternative on the ground that it is not feasible, one ought to show that one's preferred option is feasible.

I'm not a constitutional theorist, but it seems to me that the tools described in Solum's 26-page draft could increase the clarity and rigor of any argument that hinges on assertions or assumptions about possibility, not just those in constitutional theory. If you're planning to make arguments about what might be or what can't be, don't let dispassion for constitutional theory deter you from reading Solum's paper.

Short Cut to Death Row

2007-01-21T10:18:00.000-06:00

McClatchy has a very interesting collection of articles by Stephen Henderson examining capital punishment in America. Included are discussions on lawyer incompetence, admissibility of evidence indicating mental impairmnet, appellate review, and the Georgia Capital Defenders. Well worth the read.

Hat tip to How Appealing; cross posted at ULJ.

My Evening With Randall

2007-01-20T01:40:00.000-06:00

My account of Harvard Law Professor Randall Kennedy's visit to Carleton this Friday.

Business v. Lawyers

2007-01-19T01:03:00.000-06:00

A number of my lawyer acquaintances have been in transition this year, finding new jobs or getting into new areas of practice. This article in BusinessWeek -How Business Trounced the Trial Lawyers - spells out why. In 2003 Texas legislators passed a sweeping tort reform law, a culmination of years of intense lobbying by business groups. Among other things, the act put a $250,000 cap on non-economic damages for med-mal cases, bars suits against manufacturers for defective products more than 15 years old, restricted class actions and hamstrung litigation in areas such as asbestos.

The pendulum has swung though it’s not clear what exactly the effects will be. It’s not like any of these guys have had to turn to panhandling, but there’s a definite shift. Of course it's not the lawyers who will suffer, lest my derision seem motivated purely by self-interest. I recently ran into a partner at Nix, Patterson & Roach, one of the firms mentioned in the story, who has turned his focus on patent litigation and just opened a new office in Dallas. Rather, it's the people like Jack Cline, profiled in this opinion piece in the NY Times - They Say We Have Too Many Lawsuits?

Jack Cline is in a hospital here fighting for his life, stricken by leukemia that he says he got from exposure to benzene at his factory job. In most states, he would be able to sue the companies that made the benzene. But Alabama’s all-Republican, wildly pro-business Supreme Court threw out his case.
In a ruling that would have done Kafka proud, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early. Alabama law requires people exposed to dangerous chemicals to wait until a “manifest” injury develops. But when his leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure.

I think we'll be hearing a more of these stories.

First Movers Research

2007-01-16T17:58:00.000-06:00

I posted a draft of my Comment on SSRN: The Quiet of Dissolution: Post-Disaster Redevelopment and Status Preservation Compensation. In it, I argue that property acquisitions by the Road Home, Louisiana's housing recovery program (previously discussed here and here on the Jurisdynamics Network), will give rise, particularly in neighborhoods such as the Lower Ninth Ward, to functional displacements. These functional displacements will arguably trigger the Uniform Relocation Assistance and Real Property Acquisition Act, the federal relocation statute providing substantial financial assistance to homeowners displaced by state programs funded with federal dollars.

It is still early in the writing process, and feedback from the Jurisdynamics community would be both greatly appreciated and incorporated into future drafts.