Category: Articles and Books


Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art


New Casebook (Privacy, Information, and Technology)

Spinoff Cover 2e.jpgApologies for the self-promotion, but in time for this fall semester, Paul Schwartz, Marc Rotenberg, and I will be publishing a short paperback casebook of about 300 pages entitled PRIVACY, INFORMATION, AND TECHNOLOGY (Aspen Publishers, forthcoming mid-July 2006), ISBN: 0735562548.

This book is intended to be an inexpensive volume that adapts the cyberspace and technology materials from our full-length casebook, INFORMATION PRIVACY LAW (Aspen Publishers, 2d ed. 2006). The full-length casebook is about 1000 pages; the shorter paperback book is a more streamlined volume of about 300 pages, focusing exclusively on cyberspace, databases, and technology. Aspen informs me that this shorter paperback adaptation will probably sell at a price between $30 and $35.

The book might be useful as a supplement for cyberlaw or information law courses for instructors who want in-depth coverage of information privacy issues for between 2 to 5 weeks.

More information about the book is here. If you’re interested in getting on the list to obtain a review copy of the book (available in mid-July), please send an email to Daniel Eckroad.

The table of contents is available here. A summary of the book’s contents is after the fold.

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Another Data Point in the Case for Student-Run Law Reviews

Check out the thorough Report of the Investigative Committee of the Standing Committee on Research Misconduct at the University of Colorado at Boulder concerning Allegations of Academic Misconduct against Professor Ward Churchill. Arguably, the allegations against Churchill provide some support for student run law reviews. Such journals, when well-run, provide checks against just the kinds of misconduct which Churchill has apparently engaged in. Let’s go through the problems in order, and consider whether student edited law journals (“SEJ”) or peer-edited journals (“PEJ”) would have been better positioned to avoid them.[FN*] I assume that a PEJ normally requires authors to check their own citations, relying on something like the honor system and reputational sanctions.

  • A SEJ would have surely questioned the eq. seq.’ing of the General Allotment Act of 1887, while PEJ would let it pass. I’m routinely taken to task by student editors for failure to find pin cites for statutory citations.
  • Neither a SEJ nor a PEJ would have have likely caught the ghost-writing of the support sources, although if the peer reviewer knew of the connection, it is at least possible that questions would have been raised. That is, PEJ’s are better at catching self-citation and its variants.
  • I have to think that a good cite-checker would have caught the problems with respect to the Indian Arts and Crafts Act contained in Allegation “B”. I would have thought a good PEJ would have too.
  • On the other hand, no student editor would have been able to do much about Allegations “C” and “D”, while peer review might under some circumstances have been able to catch the problem. SEJ’s simply aren’t equipped for this level of nuance.
  • A well-run pre-emption check might have caught the plagiarism problem in Allegation “D” and “f”: I seriously doubt that any PEJ process would have.

The point is not, of course, that peer review is terrible and student editing is fantastic. The traditional critique is trenchant. But, student review, when performed by a motivated board, is designed largely to deal with the problems of misattribution of sources, misleading summaries of the relevant law, and to find ways – through very precise citation – to permit later replication of research. It is part of the conceit of law professors that their scholarship, because it is relied upon by courts at least once in a while, needs to be invulnerable to the very close look that Churchill’s work has just received. Whether this reality bears any relationship to practice is an open question. I’d bet that if you compared the average law review article to the average social science peer edited journal, the error-per-citation rate would be lower. [FN**] But perhaps I’ve simply drunk too much of the law review kool-aid.[FN***]

FN* Granted, most of the allegations against Churchill occurred when he published outside of a PEJ or in a PEJ with unknown procedures.

FN** The number of errors would be way higher. The reason is obvious.

FN*** And all this despite having failed, eight years ago this week, to beat the odds in the Harvard Law Review write-on competition.


The Bar Exam as a Theory of Law

bar-exam2a.jpgJust in time for Bar Exam season, I have posted my short book review of the Bar Exam: The Multistate Bar Exam as a Theory of Law, 104 Michigan L. Rev. 1403 (2006). From the abstract:

What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Professor Solove writes: “Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work has barely received scholarly attention. . . . It is time to rectify this situation and put the Bar Exam in its place as the great work of jurisprudence that it is.”

This book review actually originated as a blog post nearly a year ago, and I was delighted to have the opportunity to transform it into a printed published piece. I’ve reworked the text a bit, and expanded it somewhat, but I did my best to keep it short and to the point. It is 4 pages long, so it remains a quick easy read — and hopefully, a fun one too. At the very least, it is a lot more fun than studying for the Bar Exam! You can download it here.

Related Posts:

1. Solove, Abolish the Bar Exam (Dec. 2005)


Empirical Studies at ALEA

Bill Henderson (at the ELS Blog) has a very useful round-up of empirical papers presented at the recent ALEA conference. Blog-traveller Kate Litvak comes in for special praise:

Kate Litvak [presented] “The Effect of the Sarbanes-Oxley Act on Non-US Companies Listed in the U.S.,” which was an extremely well-done event study that used a natural experiment approach to capture the market reaction to SOX (it was generally negative). In the last couple of years, Kate, who does not have a PhD, has spent a lot of time learning sophisticated econometric techniques. It really showed. Very impressive (and easy to follow) presentation.

To be frank, I’ve been quite skeptical of studies showing a negative relationship between SOX and equity prices, on several grounds: (1) my practice experience managing the creation of event studies that dealt with changing legal regimes suggested that results are rarely as robust as one might hope; (2)) the passage and eventual implementation of SOX were so attenuated that event studies would seem hard to perform; and (3) the debate is quite politicized, with folks already disposed to dislike federalization of corporate law leading the charge on the empirical front as well. But, having read Kate’s paper, I’m inclined to rethink my position. It is well-worth a read.


A Tale of Two Bloggers


Per Paul Caron’s invitation, I’ve decided to write up a short paper based on my comments at the Harvard Bloggership Conference. It is a 5-page essay entitled A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere. It will be published as part of the symposium. From the abstract:

In this essay, Professor Solove examines Glenn Reynold’s new book, An Army of Davids, which champions little guy bloggers (the “Davids”) who are taking on mainstream media entities (the “Goliaths”).

Who exactly is David? We have a rather romantic conception of bloggers; we envision Eugene Volokh, but most bloggers are probably more akin to Jessica Cutler, the U.S. Senate staffer who blogged about sex gossip. The average blogger is a teenager writing an online diary, not a scholar or amateur journalist.

We see blogging as something that enhances freedom, expression, and self-development. But when blogging places gossip online, gossip transforms from being localized and forgettable to being permanent and widespread. We might find it harder to engage in self-exploration if every false step and foolish act is chronicled forever in a permanent record. Ironically, the unconstrained flow of information on the Internet might impede our self-development and freedom. Solove argues that the law should hold bloggers to a reasonable standard of care to avoid revealing private information about others.

You can download the essay here.


A T-Rex Named Sue


As Dan S. correctly pointed out here, there are three law review articles that have “Tyrannosaurus” in the title, and all three deal with various aspects of the legal battle for a particular dinosaur named “Sue.” Sue has also been the subject of a Nova documentary and at least two full-length books (one entitled Rex Appeal).

Here is the brief version of Sue’s story. In August 1990, commercial fossil hunters from the Black Hills Institute discovered Sue on a parcel of land within a Sioux reservation in South Dakota. The land was ostensibly owned by a rancher named Maurice Williams. The fossil hunters provided Williams with a check for $5,000, but Sue’s fair market value was later established at over $8,000,000. The fossil hunters, the landowner, the tribe, and the federal government went to court claiming ownership.

The Eighth Circuit eventually ruled that because the land had been held in Native American trust, and because the dinosaur was part of the “land,” Sue could not be sold without government permission, and that the federal government held Sue in trust for Williams. The fossil was eventually put up for auction, with a combination of corporate and non-profit interests joining together in their purchase. Sue now holds court at the Chicago field museum.

With that set of facts, you can take numerous angles on the case. In my article, I chose to describe how I use this case in class to teach contract defenses. In short, the Tyrannosaurus Sue article occupies the intersection of my interest in contract law, teaching theory, and terrible puns:

1) Contract law. Although the Court based its decision on principles of property law and statutory interpretation, it would have been fascinating if the court had examined the case from a contract perspective. Think of all the great contract defenses that could be raised to challenge the transaction, i.e. unconscionability, mistake, misrepresentation, duty to disclose. If you change the facts around slightly in a hypo, you can get into the discussion of defenses even more.

2) Teaching theory. I show my class the Nova Special on the discovery of the dinosaur, and spend a class exploring various theories of the case and talking about the defenses. It’s multimedia, it’s problem-based, it promotes active learning. You know, all the good stuff.

3) Terrible puns. Where to start digging on this one? The article contains numerous puns, the quality of which, er, kept degenerating. As a condition to my contract to publish the article, I insisted that footnote 23 remain:

An arm’s-length transaction with a T-Rex would be an interesting arrangement, given their tiny forelimbs.

So there you have it. Dinosaur law.


Modeling to the Ignorant

The very brilliant Matthew Stephenson has recently published a positive political theory paper on the choice for Congress between delegation to agencies and delegation to courts. He thinks that a rational Congress will delegate decisions to agencies if it wants to create a regime that will be ideologically consistent across issues but variable over time (he studiously avoids examples, but perhaps agricultural subsidies – which could be changed in the future but in the present Congress wants done in a particular way – are the idea). And that Congress will delegate decisions to courts if it wants temporal consistency but ideological variability (perhaps a regulation requiring the alternating, as opposed to direct, current, or maybe rules that affect long-term government contracts, are cases where Congress would roll the dice on the content of the choice – delegate it to the courts – but hope that whatever choice is made becomes a predictable precedent that future courts follow).

The second part of Stephenson’s paper, though, is, quite literally, Greek to me:


Modeling is upon us. You see it in the Journal of Empirical Legal Studies – though empiricism is conventionally thought to be a form of social science that might be practiced without sophisticated modeling – and now you see it in the Harvard Law Review. Stephenson develops eight such formulas in the formal proof portion of his piece on legislative delegations.

What is the upside of this sort of modeling for lawyers and political scientists? God knows the latter do plenty of it, but there’s an audience cost – I expect that most of the legal scholars sympathetic to positive political theory apply its insights without even being close to being able to model like McNollgasts can. And I’ve been at conferences where law professors assessed models more with fear and trembling than with confidence in the clarity of the modeled insights. I am, after all, semi-like Stephenson, an eager and promising administrative law scholar [ed. – hoo boy. Might be a good time to disable comments.]. But I doubt that Stephenson was writing part II of his paper for my benefit, or if he was, he certainly won’t enjoy my incisive critique of it – I simply skipped it.

So other than noting, gentle reader, that perhaps you ought to try to learn the basics of modeling if you expect to be reading a lot of legal scholarship in the future, I wonder if I might trouble those of you who do enjoy reading modeling pieces to recommend legal scholarship (I guess I’ll leave economists and mathematicians out for now – I’ll assume without deciding that their modeling presents different concerns than does modeling in public law subjects) in which the thesis was inexpressible without the model. I’d also like advice on meta-scholarship – that is, good resources on how to read models. In short, I’d like to hear advice for a inexperienced consumer of formally modeled scholarship. I suspect you’d be doing more of the Co-Op’s readers a service than you might think.

Publishing Student Work

I run a seminar each Spring and I often get terrific student papers. I encourage my students to publish their work, frequently referring them to Eugene Volokh’s extraordinarily helpful guide (and, yes, encouraging them to buy it!). I’m now trying to boil down some advice for them into a draft memo.

I’m inserting a rough draft of it after the jump. I’d love to hear any advice from readers about ways I could improve this memo…particularly if you know particular journals that welcome the work of students from outside their home institution. And, of course, if this humble effort can be of any aid to your students, please feel free to distribute it (with the caveat that it’s just a draft!).

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Fiction for Truth About Law Firms

The academics and the message boards can only tell us so much about law firms. Lost illusion is the undisclosed title of every novel, so surely the fictionalists have something to add. But if you’re not up for the latest Turow or Auchinloss, where should you turn? Chick lit has provided us with insight into the cultures of magazines, movie studios, nannies, and bounty hunters – but, though In Her Shoes makes a bow in that direction, I’m unaware of a really good law firm entrant in the genre.

Which brings us to Kermit Roosevelt’s In the Shadow of the Law and Nick Laird’s Utterly Monkey. The former – idealistic young lawyers in a powerful DC firm, and Pacey from Dawson’s Creek is working on the televised adaptation – struck me as quite authentic in the way and style of One L, though you can certainly quibble with the decision to tell the story through fifteen main characters. The latter – fish out of water Irish Proddy tries to survive Magic Circle London firm and his nogoodnik Ulster mates – is, if anything, even more writerly, though I had the same problem with it that I had with Cameron Stracher’s Double Billing, an early entrant in the genre: both match the elegant prose with a kinda grating woe-is-me-the-poor-young-associate schtick.

But these are the quibbles – I raced through the Roosevelt, and I found the Laird (fun fact!: married to Zadie Smith! she’s definitely his better half, tho) quite enjoyable, too. I hope that today’s young lawyers do a bit better in firm life than their fictional counterparts. Maybe they will do so if they find the time to read some novels – as well as plenty of law review articles.