Barack Obama caught plenty of heat for his comments about clinging to guns and religion, but listen to Grover Norquist quizzing the six candidates running for GOP Party Chair about their conservative credentials.

Well, I guess it appeals to the base.

(photo by J.M. Griffen)

Posted by Sarah Waldeck at 01:00 AM | Comments (0) | TrackBack (0)

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Moving this to the top . . .

Here are more details about our annual AALS happy hour:

Date: January 8, 2009
Time: 9 PM
Location: The Marriott's Lobby Lounge

Co-sponsors of the event are PrawfsBlawg and the Empirical Legal Studies Blog.

The first two hundred drinks are free! This is courtesy of Indiana University Maurer School of Law -- Bloomington. We thank the school in advance for its great generosity!

Please mark your calendars. I look forward to seeing you in San Diego this January!

Posted by Daniel J. Solove at 12:43 AM | TrackBack (0)

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That's the number of times that the Journal of Legal Studies has been cited in cases since 2001, according to the newly updated W&L Journal Rankings. Its overall combined rank is 54th (tied with newcomer JELS); and its rank by case citations is tied for 269th.

For those who are disposed to think that legal scholarship's distance from practical use is a problem, this particular result will be a congenial datapoint in opposition to technical scholarship in peer-reviewed journals. My guess as to the cause: for the most part, JLS isn't written by law professors these days, and, as a consequence, the language and conclusions of the articles it publishes don't resonate with lawyers or judges. I personally am not particularly troubled by the result -- I think of JLS as a place where folks can engage is fierce theory, unencumbered by literature review or attenuated explanation. But I do think that the relative dearth of citation to the journal by judges -- and by other law reviews -- is sobering.

Posted by Dave Hoffman at 11:27 PM | Comments (0) | TrackBack (0)

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Thanks to Concurring Opinions for inviting me back to blog this month. I look forward to your comments.

I have been thinking a lot about polygamy lately. As I prepare to teach Family Law once again, I am confronted with polygamy everywhere I turn. First, the third season of Big Love, the HBO series about a Utah entrepreneur struggling to support and “satisfy” his three wives and eight children, begins next week. Second, last April, the Texas Department of Family and Protective Services removed 468 children from their homes in a polygamous ranch. Although the Texas Supreme Court ordered the children’s return to their parents after finding no immediate danger warranting emergency removal, child protective services has continued its investigation in a handful of cases. Third, I have been following Professor Angela Campbell’s research on the polygamous community of Bountiful in British Columbia, which has challenged some of my assumptions about polygamous wives. Finally, I recently learned that polygamy is practiced in the U.S., not only by members of a fundamentalist Mormon sect in Utah, Arizona, and Texas, but also by Black Muslims and African immigrants in New York and Philadelphia. This brings me to the question I would like to raise: What exactly is wrong with polygamy? I will discuss some frequently made arguments and look forward to reading yours.

Polygamy is illegal in all 50 states. Yet, it is estimated that 50,000 to 100,000 men, women, and children live in polygamous households in the U.S. Most polygamists do not enter into plural marriages for purely personal reasons, but rather are guided by religious beliefs. Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (which broke with the Mormon church in 1890 when the latter disavowed polygamy) believe that only men who have at least three wives will enter the highest level of heaven and that women can only get to heaven if their husbands take them there. The United States Supreme Court, in Reynolds v. United States , rejected claims of religious freedom under the First Amendment to practice polygamy.

Continue reading "What Exactly is Wrong With Polygamy?"

Posted by Solangel Maldonado at 10:00 PM | Comments (1) | TrackBack (0)

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The economy got you down? Or have a stack of papers to grade? Don't fret. Life could be worse . . . Far worse. You could be sucked into a black hole.

This very entertaining video of astrophysicist Neil DeGrasse Tyson is very much worth watching. With great humor, he describes what would happen to you if you were sucked into a black hole, as well as the asteroid that's projected to come very close to Earth in 2029, possibly hitting the planet in 2037. Tyson is the author of Death by Black Hole (Norton 2007).

The video is here.

Hat tip: BoingBoing

Posted by Daniel J. Solove at 08:27 PM | Comments (0) | TrackBack (0)

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I'm a tremendous fan of no good television. Indeed, I've been known to watch Bravo's The Real Housewives of New York City, to fill the long hours waiting for the new episodes of Top Chef. As it turns out, the show provides an (arguable) hook for an odd legal issue: when does a reality t.v. look like journalism?

Briefly, the show follows several "housewives" as they purport to go about their daily business in New York City. (The "housewives" often have jobs outside the home. And they aren't all married. And parts of the show are obviously scripted. And everyone is wealthy. Please don't let the details get in the way of the feel-good trash.) One, Bethenny Frankel, a chef, was dating Jason Colodne, President of Patriarch Partners LLC, a private equity firm specializing in distressed company turnarounds.

Colodne appeared briefly in the show, where he did little except for appear very, very uncomfortable with the idea of being on T.V., and watch his girlfriend emote. The day the show aired, he was fired from his job at Patriarch, which claimed that his appearances violated the firm's extremely low-profile ethos.

Colodne sued Patriarch, alleging breach of his employment agreement, and sought $55,000,000 in damages. According to the complaint, although Patriach fired Colodne for cause, that cause was pretextual, i.e., unrelated to the television show. The litigation remains mired in discovery in the Southern District.

The interesting aspect, for fans of reality t.v., is a side-suit in California, in which Patriarch sued to enforce a Rule 45 subpoena against Ricochet Television, the producers of the Real Housewives franchise. In the memorandum in support of its subpoena, Patriarch asserted that it needed access to unaired video footage of Colondne, as well as any correspondence in which the producers set out the boundaries of his involvement. It asserted that under New York's journalist shield law (which it argued applied under California choice-of-law principles) Ricochet had to turn over the information requested.

Ricochet, by contrast, argued that it was entitled to the protection of California's journalist shield law, which it argued applied, as reality t.v. deals with matter of public concern, and is more like the nightly news than you might think.

Unfortunately for fans of the law of reality t.v., the parties settled before a judge ruled on their motions. But it seemed like a fun hypothetical to share with you anyway.

(Image Source: Gossip hound and reporter Walter Winchell, courtesy of Wikipedia)

Posted by Dave Hoffman at 03:58 PM | Comments (0) | TrackBack (0)

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Lisa Belkin has a great article in this week's NY Times Magazine about the need to redefine "experience" more broadly in order to ensure gender equity in career advancement. Using Caroline Kennedy's non-traditional career path as an example, Belkin explains that women who step out of the workplace for several years in order to parent full-time are often viewed as lacking relevant and necessary experience to return to their prior careers or take up a new career. Belkin posits that we should instead view such women as having "a range of experiences, many shaped by motherhood." She continues, "The only way work will become more flexible for everyone, for all of us, is if the untraditional begins to count."

Having long subscribed to the view that we will see complete gender equity in the workplace only when working fathers take an equal role in parenting, which would require them to avail themselves of the same parental leaves and difficult career decisions that working mothers face, I find Belkin's argument an interesting route to the same end. Rather than taking the larger step of ensuring that everyone who chooses to parent, male or female, shares equally in the career impact of that decision, Belkin's approach takes baby steps towards that goal by trying minimize the career impact for those who temporarily step out of the workplace to parent. While there are promises and pitfalls to each approach, I'm more interested today in thinking about whether law can play a role in operationalizing these strategies.

Continue reading "A Role for Law?"

Posted by Jaya Ramji-Nogales at 11:28 AM | Comments (3) | TrackBack (0)

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The more one reads about basic problems in the handling of $700 billion in emergency economic stabilization funds--and the Treasury's stonewalling response to even the most basic questions about their disbursement--the more worries pile up. Congressional Oversight Panel chair Elizabeth Warren suggests that some basic tools designed to prevent corruption in the administration of the program are not yet apparent. That's particularly shocking given Michael Lewis & David Einhorn's smart commentary on the problems that sunk us into this crisis:

At every turn we keep coming back to an enormous barrier to reform: Wall Street’s political influence. [Even the Securities and Exchange Commission is] compromised by [Wall Street's] ability to enrich the people who work for it. Realistically, there is only so much that can be done to fix the problem, but one measure is obvious: forbid regulators, for some meaningful amount of time after they have left the S.E.C., from accepting high-paying jobs with Wall Street firms.

Lewis & Einhorn suggest several other solutions that I'll quote below:

Continue reading "The Failing TARP"

Posted by Frank Pasquale at 08:15 AM | Comments (1) | TrackBack (0)

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Thanks so much to Dan, Danielle, and the Concurring Opinions crew for this invitation. This is all pretty new to me, but I am looking forward to a fun and interesting month.

In describing the job of law professor, Stuart Benjamin (http://www.law.duke.edu/fac/benjamin/) once told me that “We teach for free and grade for money.” I’m sure it is not his originally, but it’s particularly fitting for this time of year as we face exam and paper piles of various heights and teeters begging our attention. As someone who spent a few years in a PhD program, this feels to me a bit like being a pledge for life—to borrow a phrase from fraternity culture. I spent all those years grading blue books for others’ classes with the promise that some bright-eyed hopeful would someday clean up my messes only to enter law teaching, where we carry our own water. Hard to sigh too hard, of course, but the fact remains that few of us love grading.

It was while putting off grading that I read this interesting and timely article by Paul Bloom in The Atlantic Monthly, cum “The Atlantic,” on models of the self. Anyone with even a moderately complicated internal life is familiar with the subjective phenomenon of wars in our heads between competing goals and desires. Be it a battle between Dionysus and Apollo or André Soltner and Jenny Craig, we all experience the competing pulls of devils and angels, and so it is with grading. I should really grade ten more exams, but I want to see Virginia in the . . . no wait, Virginia wasn’t even Bowl eligible . . . but there are games on, and I’ll have plenty of time to grade once the dust settles from the holidays.

Continue reading "It Wasn't Me"

Posted by David Gray at 09:20 PM | Comments (6) | TrackBack (0)

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As the full measure of lawlessness at the Bush Office of Legal Counsel gets disclosed, many lawyers have anxiously awaited the nomination of a new OLC head capable of repairing the damage. The appointment of Dawn Johnsen is a sign that Obama is serious about righting the ship here. As Prof. Johnsen wrote about the infamous torture memo:

The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.

Unlike the legal academy's many "Professors Strangelove," Prof. Johnsen had the courage to uphold lasting American values in the face of temporary passions demanding their discarding. Congratulations to her on this well-deserved appointment.

Posted by Frank Pasquale at 04:23 PM | Comments (3) | TrackBack (0)

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Chi-Chu Tschang's article on Baidu illuminates how an unscrupulous search engine can exert a great deal of power once it attains dominance. Baidu has over 60% of the market in China, and can make or break an online business:

Salespeople working for Baidu drop sites from results to bully companies into buying sponsored links, say some who have been approached. Former clients say their rankings fall precipitously after they stop buying search-related ads from Baidu. At least one Baidu salesperson acknowledges they're right. "The key is whether a company buys Baidu's sponsored links," says Zhong Hongjun, a salesman from a company that represents Baidu in the central city of Wuhan. "If they don't, the search engine won't find them. If they do, they'll be in there."

Some hope that consumers will punish Baidu for manipulating search results--a result that may mollify the concerns of Bracha and I in our article Federal Search Commission. It appears that Baidu is also getting into trouble for not managing its search results enough:

Peter Lu, managing partner at China IntelliConsulting . . . says Google's traffic surged in November after the mainland's largest TV network, CCTV, ran an exposé about a patient getting fleeced by an unlicensed hospital he found on Baidu. The report highlighted Baidu's practice of mixing paid sponsored links from unlicensed hospitals and pharmaceutical companies with unpaid results. Baidu has since pulled all paid searches from unlicensed health-care companies, which the company said accounted for as much as 15% of revenue.

These events point to a new vacuum for search companies to occupy: safety certification where authorities fail to do this job. From StopBadWare to StopBadMedicine: it's search engine as FDA.

X-posted at Madisonian.

Posted by Frank Pasquale at 03:19 PM | Comments (0) | TrackBack (0)

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Elena Kagan, current dean of Harvard Law School, sent the following email to all HLS alumni today:

Dear colleagues and friends:

I am writing to all of you - the community of students, faculty, staff, and alumni of Harvard Law School - to let you know that today President-elect Barack Obama will announce his intention to nominate me to serve as Solicitor General of the United States. If confirmed by the Senate, I will resign the deanship of the Law School and take a leave of absence from the faculty.

I have accepted this nomination because it offers me the opportunity, working under the leadership of the President-elect and his nominee for Attorney General, Eric Holder, to help advance this nation's commitment to the rule of law at what I think is a critical time in our history. I am honored and grateful, awestruck and excited, to be asked to contribute to this most important endeavor. And perhaps, for me, it adds a special touch of sweetness to the occasion that the person making the nomination, in whose capacity for greatness I deeply believe, is himself a member of the group to which I am writing.

At the same time, I feel today real sadness - a sense of loss of what, if confirmed, I will be leaving that is every bit as strong as my sense of anticipation of what will be to come. Now isn't the time for me to attempt a grand wrapping-up or final farewell; I don't in any way want to presume the outcome of the Senate's consideration. For the present, I'll say only this: it has been both the joy and the privilege of my life to serve as dean of this most wondrous law school. I love it, and I love the extraordinary community of people - you - who make it up. I look forward to staying in close touch.

My warmest wishes for a happy and healthy new year.

Best,
Elena

Posted by Nate Oman at 02:37 PM | Comments (1) | TrackBack (0)

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2008 was another banner year for data leaks. The Privacy Rights Clearing House reports that we nearly reached the 250 million mark at year's end. Security breaches have resulted in the loss of over 246 million records of sensitive personal information since 2005, up from 100 million in 2006. As in all things technology, the theme is acceleration. As our data processing and storage have rapidly increased, so have our data breaches. Some of that growth may be due to the emergence of data breach reporting requirements. But it also can be attributed to the fact that cyber-intruders get smarter and faster all of the time and employees do not: those handling sensitive data continue to make the same foolhardy mistakes, such as leaving a laptop filled with sensitive data in unlocked car that is then stolen.

And true to this theme of acceleration, the number of computer viruses, botnets, and malware incidents increased rapidly this past year. According to the Kaspersky Security Bulletin, 2008 saw the evolution of malware 2.0 technologies and rootkits and the increased attacks on social networking sites and mobile devices.

To be sure, information security experts have their work cut out for them, battling new, and more numerous, problems. This is especially true in the public sector where cyber security is notoriously problematic. A recent report by the Center for Strategic and International Studies explains that break-ins into government computer systems are on the rise. In the last year, the Departments of Defense, State, Homeland Security, Commerce, NASA, and the National Defense University suffered major intrusions by unknown foreign entities. Computer hackers broke into the Secretary of Defense's unclassified email and terabytes of data were lost at the State Department. The report calls for new laws and regulations governing cyberspace, including "new standards for critical infrastructure providers like the finance and energy industries and new federal product acquisition rules to force more secure products." Hopefully, the Obama Administration and incoming Congress will commit both funds and energy to enhancing computing security.

Posted by Danielle Citron at 02:20 PM | Comments (0) | TrackBack (0)

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Thanks to Dan for inviting me to blog this month. I’m looking forward to it.

I’ll start with two pieces in the NY Times Sunday Magazine this week that raise interesting questions about individualization versus generalization and the struggle for equality for women and people with disabilities.

In Creature Comforts, Rebecca Skloot reports on the difficulty faced by people with disabilities seeking to use a variety of animals to assist them in day-to-day public life. In doing so, she identifies the inevitable tension between the individualized inquiry required by the ADA and the urge (and sometimes need) to generalize. The people maintaining public spaces, including those who use those spaces, want bright lines about which animals are permissible service animals, while the ADA requires that they accommodate individuals with disabilities and their individualized needs.

Similarly, in The Senator Track, Lisa Belkin comments on the difficulty that women (including Caroline Kennedy) face when they seek jobs after taking what she calls a “mom sabbatical.” Belkin claims that we need to redefine “experience” so that “what you do, and think, and produce, and change all count—even if none of your activities take place in an office, where you enjoy a title and a salary.” This call for individualized inquiry, however, butts up against the simplicity and utility of generalization; in short, working in an office with a particular title serves as a general proxy for a group of skills that Belkin would have employers examining on an individual basis (e.g., ability to run meetings, to arrive on time, to manage accounts, etc.).

The fight for individualization over generalization is a worthy one. In setting up the equality struggle in this way, however, both pieces miss an important component of the battle: longstanding and entrenched biases. In the disability context, our perceptions and judgments about the suitability of certain animals for public accommodation are undoubtedly intertwined with our biases regarding difference (and our definitions of “normalcy”). It will be much easier, I expect, to get people to accept, for example, horses as service animals for the blind than it will be to get people to accept a parrot as a service animal for a man prone to psychotic episodes. Similarly, the difficulty faced by women who take time out of the traditional work force to provide care for family members is as much one of stereotypes as it is of a more neutral inclination to generalize. I’m reminded here of research by sociologist Shelley Correll and colleagues at Cornell on the motherhood penalty (for a recent review of the research the work in this area, see Stephen Benard et al., Cognitive Bias and the Motherhood Penalty, 59 Hastings Law Journal 1359 (2008)). This research suggests that a woman seeking to reenter the traditional work market will have to overcome stereotypes that her male counterpart will not. Imagine a mother and a father who each picks up a child from your neighborhood school, Monday through Friday at 1:30 pm. You bump into each one and engage in conversation; which one do you expect will have an easier time convincing you (through subtle signals or otherwise) that he/she is engaged in workforce-related activities between 9:00 and 1:00?

Posted by Tristin Green at 02:13 PM | Comments (0) | TrackBack (0)

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Many thanks to Concurring Opinions for the invitation to blog this month, even if my creating this “electronic paper trail” could significantly complicate the process of completing an application for a job in the Obama administration! I look forward to the opportunity to offer thoughts on a variety of current topics, particularly those with international implications. Today, I thought I’d start on the lighter side and closer to home, with a post inspired by Robert Fulghum’s 1988 blockbuster, All I Really Need To Know I Learned In Kindergarten. As the parent of a toddler, I’ve noticed that fundamental advocacy and negotiation skills seem to develop even earlier. So, courtesy of our three-year-old, here is a quick refresher on negotiations for those who find themselves making deals in the new year, followed by some reflections on law and governance...

Continue reading "All I Really Need To Know..."

Posted by Chimène Keitner at 01:14 PM | Comments (4) | TrackBack (0)

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As Obama, Volker, Summers, and Geithner prepare to ride into Washington to save us all with a stimulus package, Robert J. Samuelson provides a dose of reality in today's Washington Post. He writes:

The present crisis represents a fundamental break in the recent pattern of American economic growth. For the past quarter-century, the economy has advanced on an ever-rising tide of personal borrowing that supported expanding purchases of consumer goods -- contributing to U.S. trade deficits -- and a housing boom. But lending became reckless, and many households overborrowed. In its simplest terms, the "stimulus" substitutes the federal government's superior credit for damaged private credit.

But this cannot continue indefinitely. Rapid increases in the federal debt -- much faster than in recent years -- would threaten a further loss of confidence that might prolong today's financial crisis or, someday, trigger a new one. A growing federal debt burden would also compound the problem of paying the staggering retirement costs of aging baby boomers. So: Neither rising household nor government debt provides a plausible foundation for future economic growth.

Even this gloomy analysis, alas, assumes that the stimulus is actually structured in an intelligent way. Obama is surrounding himself with economic grown ups, and I suspect that what they send to the Hill is likely to have some logic to it. (Although all the talk of infrastructure rebuilding makes me worry about gargantuan appropriations on projects that won't actually start putting money in anyone's pocket for years.) The problem, of course, is that what comes out of Congress will not be what Obama sends up, and as the run up to the TARP fund and its aftermath shows the high-minded slinging about of hundreds of billions of dollars has a tendency to unleash Congress's more pork-prone side. Of course, in theory dropping money from airplanes ought to have some short term impact on consumption, so maybe a bit of Keynsian pork would not be all bad. The real problem, however, is that according to at least some projections the federal budget deficit next year could be as high as $1.3 trillion dollars, a whopping 9 percent of GDP. Raising that kind of cash may well push interest rates up, offsetting whatever stimulus effect a big dollop of government spending might have.

Continue reading "Put not Your Faith in Stimulus Packages"

Posted by Nate Oman at 09:26 AM | Comments (4) | TrackBack (0)

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An interesting case from the Wisconsin Court of Appeals embodies what I believe is a thoughtful and nuanced understanding of privacy. The case is Wisconsin v. Jahnke, 2007AP2130-CR (Dec. 30, 2008).

The case is a criminal prosecution of a man who secretly recorded his girlfriend in the nude, in violation of Wisconsin Statute § 942.09(2)(am). I've posted the text of the full statute below. The statute provides that it is a felony to record another person in the nude without that person's consent "in a circumstance in which [the person] has a reasonable expectation of privacy." The defendant contended that his girlfriend didn't have a reasonable expectation of privacy because (as the court characterizes his argument), "she knowingly and consensually exposed her nude body to him while he was secretly videotaping her." In other words, he argued that since she expected to be seen by him, she lost her expectation of privacy in her nude body.

The court wisely rejected the defendant's construction of the statute:

Under this construction, Jahnke’s girlfriend’s privacy interest in not being recorded in the nude is left unprotected any time she permits anyone, under any circumstance, to view her nude. If she disrobes in a medical facility and permits medical personnel to view her, such personnel could record her without violating subsection 1 and, of course, later share that recording without violating subsections 2 or 3. It is one thing to be viewed in the nude by a person at some point in time, but quite another to be recorded in the nude so that a recording exists that can be saved or distributed and viewed at a later time.

The dissent raises some interesting arguments involving statutory construction and some prior caselaw. In particular, the dissenting judge points to an earlier decision defining the term "reasonable expectation of privacy" under the statute, holding that it "requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances." State v. Nelson, 718 N.W.2d 168 (Wisc. App. 2006). The majority concluded that the Nelson definition was "incomplete" and that the "statute is plainly directed at reasonable expectations vis-à-vis not being recorded."

The majority opinion wisely avoids a trap that many courts get into -- understanding "privacy" narrowly as absolute secrecy or seclusion. Privacy involves a cluster of expectations involving the nature and extent to which their information is captured, used, and disseminated. It seems quite reasonable to assume that two lovers who see each other nude nevertheless expect privacy. They might be exposing their nude bodies to each other, but what they expect is that nobody else will see them. Since this is a criminal statute, it is important that courts avoid interpreting privacy too liberally, especially in areas where expectations of privacy are muddy. But it seems to me that under this circumstance--the nonconsensual recording of a person in the nude when she is exposing her body only to her boyfriend (rather than walking down a public street in the nude)--expectations are clear that the intended exposure is for the boyfriend's eyes only.

Continue reading "Privacy Expectations: Being Seen vs. Being Recorded"

Posted by Daniel J. Solove at 08:01 PM | Comments (2) | TrackBack (0)

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I'm delighted to announce that Professor Solangel Maldonado is joining us for a guest visit. Solangel is a professor of law at Seton Hall Law School where she teaches torts, estates and trusts, a number of family law courses, and a seminar titled Race, Ethnicity & the Law. Her primary research explores how the law can encourage nonresident fathers to maintain and nurture relationships with their children. She also writes about transracial adoption.

Before joining Seton Hall Law School, Solangel clerked for federal district judge Joseph A. Greenaway and was a litigation associate with Kaye, Scholer, Fierman, Hays & Handler, LLP and with Sidley, Austin, Brown & Wood in New York. She received her B.A. from Columbia College and her J.D. from Columbia Law School.

Her recent publications include:

* FAMILY LAW IN THE WORLD COMMUNITY (Carolina Academic Press, 2nd ed., forthcoming 2009) (with D. Marianne Blair, Merle H. Weiner, and Barbara Stark)
* Taking Account of Children’s Emotions: Love, Anger and Nurture After Divorce, ____ Va. J. Soc. Pol’y & L.___ (forthcoming 2008)
* Permanency v. Permanent Ties: The Case for Post Adoption Contact, ___ Capital L. Rev. ___ (forthcoming 2008)
* Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce, 43 Wake Forest L. Rev. 441 (2008)
* The Story of the Holyfield Twins: Mississippi Band of Choctaw Indians v. Holyfield, in Family Law Stories (Carol Sanger ed., forthcoming 2007)
* Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415 (2006)
* Deadbeat or Deadbroke: Redefining Child Support For Poor Fathers, 39 U.C. Davis L. Rev. 991 (2006)
* Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent, 153 U. Pa. L Rev. 921 (2005)

Posted by Daniel J. Solove at 07:07 PM | Comments (0) | TrackBack (0)

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I'm very pleased to introduce Professor Chimène Keitner, who will be guest blogging with us this month. Chimène is an Associate Professor of Law at UC Hastings where she teaches International Criminal Law, the Advanced International Law Research Seminar for students in the Hastings international law concentration, and Evidence. Chimène earned her bachelor's degree in history and literature at Harvard, her doctorate in international relations at Oxford, where she was a Rhodes Scholar, and her law degree at Yale. She came to Hastings after clerking for the Chief Justice of the Supreme Court of Canada and practicing law for several years at a plaintiffs' class action law firm in San Francisco.

Chimène's research focuses on the relationships among law, communities, and borders. Recent publications include:

* THE PARADOXES OF NATIONALISM: THE FRENCH REVOLUTION AND ITS MEANING FOR CONTEMPORARY NATION BUILDING (State Univ. of N.Y. Press 2007) (now available in paperback).
* Conceptualizing Complicity in Alien Tort Cases, 60 Hastings L.J. 101 (2008)

She has also recently written an issue brief for the American Constitution Society on the use of foreign and international law sources in constitutional interpretation She is currently working on an article entitled Rights Beyond Borders, which provides a conceptual framework for reasoning about the extraterritorial application of domestic rights regimes based on a comparative analysis of the jurisprudence of several national supreme courts. She will present an overview of this work at the AALS Annual Meeting as part of the New Voices panel organized by the Section on International Human Rights, which will take place in the Cardiff Room at the San Diego Marriott on January 7 from 2-5pm.

Posted by Daniel J. Solove at 07:05 PM | Comments (0) | TrackBack (0)

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I'm delighted to introduce Professor Tristin Green, who will be guest blogging with us this next month.

Tristin is a professor of law at Seton Hall Law School, and a former colleague. She's visiting this year at UC Berkeley Law School. Tristin’s scholarship focuses on employment discrimination. She is particularly interested in the intersection between organizational structures and individual biases and stereotypes and on the legal implications of understanding discrimination as a relational problem. Her work on a structural approach to employment discrimination law has appeared in the Harvard Civil Rights-Civil Liberties Law Review, the Fordham Law Review, and the Vanderbilt Law Review. Her scholarship on work culture and workplace assimilation demands has appeared in the California Law Review and the North Carolina Law Review. Her recent projects also include an article critiquing the Supreme Court’s decision in the controversial pay case, Ledbetter v. Goodyear, as evincing a conceptual shift toward insular individualism, Harvard Civil Rights-Civil Liberties Law Review (2008), a co-authored article with sociologist Alexandra Kalev, University of Arizona, on developing discrimination-reducing measures at the relational level, Hastings Law Review (2008), and an article focusing on bias in relations between workers accomplishing day-to-day tasks and the role of race and sex in decisions organizing work (and Title VII affirmative action law) in shaping those relations.

Recent publications include:
* Discrimination-Reducing Measures at the Relational Level, 59 HASTINGS L. J. 1435 (2008) (with Alexandra Kalev)
* Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear, 43 HARV. C.R.-C.L. L. REV. 353 (2008)
* Discomfort at Work, 86 N.C. L. REV. 101 (2008)
* Work Culture and Discrimination, 93 CAL. L. REV. 623 (2005)

Posted by Daniel J. Solove at 07:02 PM | Comments (0) | TrackBack (0)

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Over at Conglomerate, Professor Gordon Smith offers sage advice to young scholars.

Gordon mentions one of my favorite tips -- one new idea per article. Any more will likely make the article too long, and I've rarely ever encountered an article that has become known for multiple ideas, perhaps with the exception of Anthony Amsterdam's Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974), which has a grab bag full of important ideas. Like it or not, your article will probably be remembered for one idea, despite great gems that might be included in a small section, or in a paragraph, or in a footnote. Especially the footnotes -- the only people who read law review article footnotes are law review editors. Given the tremendous amount of legal scholarship being produced, it's a luxury to find an article where it is worth the investment to read the footnotes.

Posted by Daniel J. Solove at 05:43 PM | Comments (0) | TrackBack (0)

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Reflecting on a risk-mad Wall Street, Debora Spar argues that a finance sector less dominated by men would have been more responsible: "Whether it be from a protectiveness born of biology or a reticence imposed by social norms, women may be less inclined than men to place the kind of bets that can get them in real trouble." Her insightful piece reminded me of conservative thinker Reihan Salam's proposal that gun laws recognize differing propensities for violence among men and women:

The idea of treating women and men differently offends our understanding of gender equality at a deep level. But treating women and men as though they are identical—as though women are as violent, dangerous, and abusive as men—isn’t treating them equally. Rather, it is pretending that ignoring their deep differences is the best policy, even if that means that people will die or suffer as a direct result.

Given that "women . . . account for only 17.9 percent of corporate officer positions and none of the chief executive positions . . . at Fortune 500 finance and insurance companies," the recovery could be a long way off.

Posted by Frank Pasquale at 04:52 PM | Comments (6) | TrackBack (0)

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At the Volokh Conspiracy, Orin Kerr offers interesting insights about talked-about candidates for Obama's Solicitor General: Dean Elena Kagan and Kathleen Sullivan. He writes: "I don't know either Kagan or Sullivan well, but from what I know I would think either would make an excellent Solicitor General. Sullivan has more litigation experience: The article notes that Sullivan has four prior Supreme Court arguments, while Kagan has had none. Indeed, if the Westlaw ALLFEDS database is correct, Kagan has never had her name on a Supreme Court merits brief, and the last federal appellate brief with her name on it was in 1990 when she was an associate at Williams & Connolly."

Kerr goes on to explain that "this relative lack of practical experience is not so unusual when an Administration picks an academic as SG. Very few law professors have notable litigation experience, and those that do usually have most of their experience from the period before they became academics. When Harvard Law School Professor Charles Fried was picked in the Reagan Administration, for example, his first argument to any court ever was earlier in the year he became SG, when he was briefly a Deputy SG. And even when an Administration picks a practitioner, a lack of Supreme Court argument experience is not so uncommon: My recollection is that Seth Waxman had never argued before the Court when he was named SG in 1997. In any event, it will be very interesting to find out who Obama selects." Indeed.

Posted by Danielle Citron at 01:21 PM | Comments (0) | TrackBack (0)

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During the recent election, individuals Facebooked, Twittered, texted, emailed, and YouTubed about the candidates, a trend that many consider a renewed commitment to public participation in government. Since the election, President-elect Obama's staff has sought to keep that momentum alive, sending frequent emails to supporters to enlist their participation in passing legislation through grassroots efforts. In a recent article, Karen Czapanskiy and Rashida Manjoo ask an intriguing question in the wake of our reinvigorated electorate: should mechanisms exist that would require give and take between legislative leaders and the public? In other words, should legislators be required to faciliate public participation to enhance the legitimacy, accuracy, and accountability of its laws? In The Right of Public Participation in the Law-Making Process and the Role of Legislature in the Promotion of This Right, Czapanskiy and Manjoo explore a recent decision by the South African Constitutional Court mandating the involvement of citizens in the law-making process and the valuable lessons for other democratic nations that the decision provides.

Here is the abstract:

In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate expression of political participation, Doctors for Life does not go as far as it could in terms of entrenching public participation in the South African legislative process. Nonetheless, it offers a model of an interim place that the United States can consider. The case also offers a model for international human rights exploration in an area of underdeveloped theory, especially in regard to enhancing respect and dignity as aspects of citizenship in a democratic state.

Posted by Danielle Citron at 11:33 AM | Comments (2) | TrackBack (0)

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Election 2008 passed uneventfully, at least for appearance's sake. Although voters stood on long lines and administrators wrestled with machine malfunctions, it appeared that e-voting technology withstood the pressure of a robust voting season. But lest we not get too optimistic about the technology, reports have been trickling in about the inaccuracy of e-voting systems and the costs to repair them. In mid December, officials in Montgomery County, Ohio reported that tabulation software used with Premier Election Solutions' (formerly Diebold) touch-screen voting machines failed to count five votes in the city of Trotwood. Officials discovered that although the five votes were recorded to a memory card inside the machine, the votes were not counted by the tabulation software when the memory card was loaded to the tabulation server. Premier's Global Election Management System (GEMS) is the tabulation software that counts votes from memory cards. Ohio officials had no idea about the problem until a month after the November election, only learning about it when officials put the memory cards back into the voting machines to conduct a manual audit. Premier's GEMS is apparently responsible for dropped votes in a California county and the source of previous counting problems in Ohio's primary season.

And just when Premier might have thought the five uncounted votes would seem trivial enough to escape public outrage, Maryland came calling. Maryland's Attorney General has recently filed suit against Premier, seeking reimbursement of $8.5 million the state allegedly spent to repair security problems in its e-voting machines. As Maryland AG Doug Gansler explains, the lawsuit will resolve Premier's outstanding bill of $4 million to fix problems in its machines and the state's claim for reimbursement. "They should pay even more than [the millions we seek] because the system they sold us [for $90 million], where they said we would have reliable results that these are accurate machines and they could not be tampered with, has proven to be not true," noted Gansler.

Maryland has decided to scrap the touch-screen machines in favor of optical scanners, which have the advantage of leaving behind a paper trail that can be audited without having to worry about faulty printers. But, oddly, Maryland has chosen to purchase those optical machines from none other than Premier, the very company that it is suing for broken promises and faulty machinery. This begs the larger question: are states responsible for this e-voting predicament? When Congress appropriated billions of dollars under the Help America Vote Act to allow states to buy electronic machines that would put the memory of hanging chads behind us, states went on a mad spending spree, buying first and asking questions later. Contracts required little of the vendors, leaving states in the difficult spot that they are in today with inaccurate and insecure voting machinery. Now, they seem to be headlong into the same mistakes. Voting experts Aaron Burstein and Joseph Lorenzo Hall are studying the contracts that states enter with voting vendors and I look forward to the light that their work will shed on fixing this difficult problem.

Posted by Danielle Citron at 10:29 AM | Comments (2) | TrackBack (0)

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In a recent editorial in Nature entitled Towards responsible use of cognitive-enhancing drugs by the healthy, distinguished contributors have endorsed a "presumption that mentally competent adults should be able to engage in cognitive enhancement using drugs." Against various Luddites who worry about the rat races such drug use could spark, the editorialists argue that cognitive enhancement is here to stay: "From assembly line workers to surgeons, many different kinds of employee may benefit from enhancement and want access to it, yet they may also need protection from the pressure to enhance." Instead of the regulation encouraged by Francis Fukuyama, they would have us rely on robust professional standards to guide "appropriate prescribing of cognitive enhancers."

The most promising aspect of the editorial is the thin and unspecified concept of enhancement that it endorses. As Carl Elliott notes, relentless focus on well-defined tasks can offer a real competitive edge in today's economy:

Employees who cannot rely on job security often feel as if they are constantly required to prove their value to their employers. Many of these same employees spend most of their time sitting in front of a computer screen performing repetitive tasks that require sustained attention and concentration.

Of course, many in this group may experience moments of imagination or reverie positively, as exemplary thought rather than distracting consolation. For those individuals, the next goal of an autonomy-enhancing bioethics should be the development and widespread use of cognition-dulling drugs, which serve to blot out all awareness except of the task at hand. Cures for resentment, envy, or union-organizing may also serve to enhance workplace efficiency.

Bioconservatives may fear that cognition-dulling drugs presage a Brave New World--particularly Aldous Huxley's futuristic vision of certain fetuses being routinely exposed to alcohol in order to ease their acceptance of low-caste membership. They tend to forget Huxley's counter-image of a progressively technologized paradise, in Island, which "answers the authoritarian monoculture of Brave New World point by point":

Biotechnology is present, but as a kind of ecologically wise agricultural system. . . . The nuclear family has been abolished . . . but only to increase human attachment among all its inhabitants . . . The novel . . . ends, exactly as it began, with the island's mynah birds repeating the mantra they have been trained to mimic over and over again: "Attention."

Like the happy inhabitants of Huxley's Island, both cognition-enhancers and cognition-dullers can work together peaceably in a mutualism that discourages conflict.

Fortunately, the Nature editorialists appear in principle open to cognition-dulling methods, endorsing a nuanced and contextualized response:

Appropriate policy should prohibit coercion except in specific circumstances for specific occupations, justified by substantial gains in safety. It should also discourage indirect coercion. Employers, schools or governments should not generally require the use of cognitive enhancements. If particular enhancements are shown to be sufficiently safe and effective, this position might be revisited for those interventions.

The key then is to carefully consider how best to develop a pharmacopeia that safely and effectively cures tendencies to insubordination, daydreaming, dissatisfaction, and other inefficient habits.

Continue reading "Towards Responsible Use of Cognition-Dulling Drugs"

Posted by Frank Pasquale at 10:22 AM | Comments (2) | TrackBack (0)

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The recent face transplant at the Cleveland Clinic raises some fascinating issues about the nature of personal identity and cutting edge medicine. A failing face transplant might create agonizing medical problems for the recipient, leading some to suggest that death-accelerating drugs should be available in that case. Current organ donation cards do not specify whether they authorize a face donation. The family of the face donor might find the transplant recipient's new face uncannily like that of the relative they recently lost. Finally, there is the question of the cruelty of a society that made the transplant so pressing in the first place:

She "was called names and was humiliated," Siemionow [the doctor who led the transplantation team] told reporters yesterday. . . . Eric Kodish, the Cleveland Clinic's chief ethicist, added, "Human beings are inherently social creatures. A person who has sustained trauma or other devastation to the face is generally isolated and suffers tremendously." He concluded: "The relief of suffering is at the core of medical ethics and provides abundant moral justification for this procedure."

Yes, suffering cries out for relief. But when the suffering is social and the relief is surgical, where are we going? We're drifting from a standard of necessity rooted in you to a standard—"socially crippled"—that's dictated by others. And instead of changing them, we're changing and endangering you. The Cleveland doctors say their patient consented freely. They asked her, for example, whether it was she or her family who wanted the transplant. But how free can your choice be when the reason you want it is to escape humiliation?

As Will Saletan concludes, "I feel for the Cleveland patient. I hope her new face ends her suffering. I just don't want to end up killing her—and calling that her choice—because we made her life hell."

As the cosmetic surgery boom abates in South Korea, it's important to think of all the smaller ways in which competitive pressures and fear of lesser humiliations drive demand for these procedures. The greater the humiliation in store for the unattractive, the more this "luxury" becomes a necessity.

Posted by Frank Pasquale at 08:44 AM | Comments (1) | TrackBack (0)

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Harvard Business School Professor Regina Herzlinger has long fought for "consumer-directed health care." She states: "People can choose from 240 models and makes of cars pretty intelligently . . . .Why do we assume they can't do the same when it comes to their health?"

A recent Boston Globe series on hospitals in her own backyard answers that question.

Continue reading "Partners in Power"

Posted by Frank Pasquale at 09:00 PM | Comments (0) | TrackBack (0)

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I am delighted to introduce my colleague David Gray who will be guest blogging this month. David is newly appointed to the Faculty of the University of Maryland School of Law, where he teaches criminal law, criminal procedure, and seminars in jurisprudence and transitional justice. Immediately before joining Maryland, he spent a few years at Williams & Connolly in Washington, D.C., where most of his time was spent on white collar, criminal, professional liability, appellate, and plaintiffs’ civil rights litigation. Before his tenure at W & C, he was, in reverse chronological order, a Visiting Assistant Professor at Duke Law, clerk to The Hon. Chester J. Straub, and clerk to The Hon. Charles S. Haight, Jr. He received a JD Order of the Coif from the New York University School of Law, his MA and PhD in Philosophy from Northwestern University, and his BA from The University of Virginia.

David writes mainly on jurisprudential issues core to transitional justice debates , but he also dabbles in