Category: General Law


Sharia Courts in the UK

875413_balance.jpgAccording to this week’s Sunday Times, the Muslim Arbitration Tribunal has set up five Sharia courts throughout the United Kingdom. These courts hear solely civil cases, including divorce, domestic violence, and inheritance cases. The Sharia courts have been classified as arbitration tribunals under the same provision of the 1996 Arbitration Act used by Jewish Beth Din courts, which have resolved civil cases in Britain for over 100 years. As long as both parties in the dispute agree to give it the power to rule on their case, a decision of an arbitration tribunal is legally binding and enforceable through British county courts or the High Court.

While Muslim women who choose to use these Sharia courts for family law disputes are surely capable adults entitled to make their own decisions, the track record of the courts on women’s rights thus far is concerning. For example, in a recent inheritance case, the court divided a man’s estate by giving twice as much to his two sons as it did to his three daughters. And in six recent domestic violence cases, the court ordered the husbands to take anger management classes and participate in mentoring with community elders; the women withdrew their complaints from the police, who stopped investigations.

Can these courts be reconciled with British and European laws protecting gender equality? Given that participation requires consent of both parties, it will be difficult to find a plaintiff to challenge the courts’ unequal treatment of women. Perhaps a more fruitful course is suggested by Zareen Roohi Ahmed, the chief executive of the British Muslim Forum, an umbrella organization for mosques in the UK. Noting that sharia courts in Britain are still poorly organised, she proposes that the government support professionalization of the courts, including “female involvement . . . on the decision-making panels . . . and a wider range of scholars and academics involved to put more thought into making the rules and regulations applicable to today’s society.” It’s a thorny problem, to be sure, but by engaging with these courts rather than shutting them down, the British government might, in the end, protect the rights of more women.

Cross-posted on IntLawGrrls


The Sarah Palin E-mail Privacy Act of 2009

As has been widely reported, Sarah Palin’s Yahoo e-mail account has been breached, and its contents have been posted to wikileaks. is posting excerpts from the e-mail messages including photographs.

As usual, Orin Kerr (with some assists from his merry band of commenters) is doing a great job fleshing out the legal analysis. A crime has been committed, there can be no doubt, and Yahoo!’s lawyers will probably be kept up late tonight receiving and responding to incoming subpoenas and court orders.

I wanted to come at this story from a slightly different angle: I predict that some day we will look back on this breach as a watershed event in the history of statutory Internet privacy. As Dan and many others have noted in their articles, Congress often enacts privacy protecting legislation only in the wake of salient, sensationalized, harmful privacy breaches. Thus, Judge Bork’s video rental records begat the Video Privacy Protection Act and the murder of actress Rebecca Schaeffer by a stalker with DMV records led, eventually, to the Drivers’ Privacy Protection Act.

Compared to these examples, the breach of Sarah Palin’s e-mail account is on a higher plane of salience and sensationalization. The most scrutinized woman in the country has dozens of her private correspondences pasted all over the blogs. Even if nothing is found in these messages which damages her or the campaign, and whether or not the perpetrators are caught, many will call for tougher privacy laws, and Congress and state legislatures will feel great pressure to deliver. And they won’t just be targeting the breachers–many will criticize the Gawkers and Wikileaks for helping disseminate the e-mail messages (if not the Kerrs and Ohms and Washington Posts for linking to Gawker), so expect a fierce First Amendment debate. I can even see calls to make IP addresses easier to track. Mandatory data retention, anyone?

If I am right about this, expect the E-mail Privacy Act of 2009, and expect it to be a blockbuster. If you’re an activist, government lawyer, e-mail provider, or scholar with an interest in information privacy, I advise you to start putting together your statutory wish lists.


Dark Side of the Moon: Richard Wright Died

To those who know Pink Floyd’s work the news that Richard Wright died is a bit of a blow. The band is one of my all-time favorites. Dark Side of the Moon is brilliant. Wright composed Us and Them (still pertinent in a world of anger politics) and the Great Gig in the Sky on that album. If you do not know Floyd’s work, I recommend almost everything they did with Waters. I am less of a fan of the post-Waters era. The early years offer many good albums such as A Saucerful of Secrets (1968), Ummagumma (1969), Atom Heart Mother (1970), and Meddle (1971). Their first album Piper at the Gates of Dawn has some rather interesting material, but it and Obscured by Clouds (1972) have never been up there for me.

The best work for me begins with The Dark Side of the Moon (1973) and then the run is amazing: Wish You Were Here (1975), Animals (1977), and The Wall (1979). I easily recommend all of these albums. They are true albums; a theme and related concepts are explored throughout the album.

Here is Floyd’s Web site.

Some more after the jump.

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Slate’s Unpersuasive Case for Further Massive Government Sponsored Moral Hazards

Slate has debued its “Big Money” business blog today with a less than compelling argument in favor of a government bailout of Lehman Brothers. According to the statist Slatists:

[H]ere’s the richest irony: Bankruptcy means that Lehman is going to get bought anyway. In the last 15 years or so, bankruptcy has become a familiar, almost cozy neighbor: Airlines, for example, seem to go in and out of bankruptcy all the time. But those are Chapter 11 bankruptcies, which allow businesses to stay alive as going concerns. Investment banks like Lehman are generally supposed to file under Chapter 7, which involves appointing a trustee who will essentially liquidate the firm’s assets. As we are writing this, Reuters is reporting that Lehman will use Chapter 11­there are loopholes for that­but it remains likely that Lehman will be liquidated.

So think about this: By declining to offer the kind of guarantees that would have made Lehman an acceptable risk for the likes of Barclays or Bank of America, the U.S. government has forced Lehman into bankruptcy­under which its assets will get bought for pennies on the dollar. It’s hard to see how that is a better outcome than having Lehman bought for some low, $2-a-share price, as Bear initially was.

I am not persuaded.

As I recall the feds bailed out BS not because of some we-must-maximize-share-prices-for-failed-investment-houses norm but because BS was so integrated into financial markets that the ripple effect would be catestrophic. To be sure, the Big Money folks think that the same is true of Lehman Brothers as well. We’ll see, I suppose. On the other hand, a sale in bankruptcy and a sale backed by the feds is NOT the same thing. For one thing, the equity holders get wiped out in bankruptcy, which is as it should be given their status as the residual holders of risk. Second, bankruptcy sales will dismember the firm and sell off the assets bit by bit. The fact that Lehman Brothers couldn’t find a buyer without a federal guarantee of its assets means that the portfolio of assets that it held wasn’t worth buying. Why keep them together then? Finally, if Lehman had sold at $2 a share that would have been $2 per share of capital in the hands of Lehman Brother’s stock holders that wouldn’t have been invested elsewhere. If the only way of getting that $2 a share into the hands of Lehman stockholders is with a big government carrot, then the market is telling us something about the allocative efficiency of putting the capital in the hands of those stock holders. Better to put it elsewhere.


A Little More on the Preservation (Or Destruction) of One’s Creations

bookburn2.JPGDan’s post about Kafka and Lior Strahilevitz’s The Right to Destroy raises a question about which Dan and I have tangled and with which I still struggle: what are the rights of heirs in intellectual property? My article currently out to law reviews, Who Cares About Heirs (In Copyright)? attacks the idea that heirs matter at all.

Here is the abstract:

Although the harms of the Copyright Term Extension Act and Congress’ authority to pass the act have been well-discussed, an underlying assumption merits consideration: heirs matter in copyright. When one examines the dominant theories offered to justify copyright from utilitarian to Lockean labor to Hegelian personhood to social planning, no justification for descendible copyright is found. Even if one cedes the idea that custom or tradition supports the ability to inherit real property or money, the nonrivalrous nature of copyright changes the analysis. Exploitation of copyrighted work in life allows one to accumulate wealth and pass it on to descendants. In contrast, allowing the underlying work that can be exploited in life to pass to the next generation denies others the ability to use the intellectual resources that have already been exploited. In addition, investigating the nature of creative and productive systems reveals that the longer such resources are locked up, the more creativity and innovation are hindered and harmed rather than increased. This result poses an additional harm as it limits the material available for individuals to use as they develop what Martha Nussbaum has called the basic capability to experience and create expressive works. As such this Paper argues that life is the proper and theoretically supported terminus for copyright interests.

The paper builds on my article, Property, Persona, Preservation (forthcoming Temple L. Rev.) In that article I use the question of what happens to one’s email when one dies to explore “the normative theories behind creators’, heirs’ and society’s interests in the[ir] works. All three groups have interests in preservation, but the basis for the claims differs.” Part of that article draws on Lior’s work and finds that whether one calls it destruction or preservation the author should have strong control over the work.

As to whether Dan’s concerns over privacy apply in this area, I think it is an open question and one I look forward to addressing in upcoming work. For now, it seems to me that many family privacy claims have little to do with privacy and more to do with economic gain. That is not to say privacy issues are not in play and are always false. Rather as Dan has well-documented, the term privacy has multiple meanings and may be a real concern. Still, the effects of denying access to creations based on privacy claims may be so pernicious that another approach is required.

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Baffled By Community Organizing

Bell_brain_cut.jpg First, it appears that hardcore left-wing and hardcore right-wing folks don’t process new data. An fMRI study found that confirmation bias — “whereby we seek and find confirmatory evidence in support of already existing beliefs and ignore or reinterpret disconfirmatory evidence” — is real. The study explicitly looked at politics:

During the run-up to the 2004 presidential election, while undergoing an fMRI bran scan, 30 men–half self-described as “strong” Republicans and half as “strong” Democrats–were tasked with assessing statements by both George W. Bush and John Kerry in which the candidates clearly contradicted themselves. Not surprisingly, in their assessments Republican subjects were as critical of Kerry as Democratic subjects were of Bush, yet both let their own candidate off the hook.

The neuroimaging results, however, revealed that the part of the brain most associated with reasoning–the dorsolateral prefrontal cortex–was quiescent. Most active were the orbital frontal cortex, which is involved in the processing of emotions; the anterior cingulate, which is associated with conflict resolution; the posterior cingulate, which is concerned with making judgments about moral accountability; and–once subjects had arrived at a conclusion that made them emotionally comfortable–the ventral striatum, which is related to reward and pleasure.

In other words: “‘We did not see any increased activation of the parts of the brain normally engaged during reasoning,’” said the study’s leader in an Emory University press release. “Essentially, it appears as if partisans twirl the cognitive kaleidoscope until they get the conclusions they want, and then they get massively reinforced for it, with the elimination of negative emotional states and activation of positive ones,” Westen said.

So maybe this explains how a party that offered churches and other faith-based organizations who, as far as I know, engage in community organizing to achieve social goals, can attack the idea of community organizing. Now before our more conservative readers jump in, no, I do not have a great example for the left. I am sure it exists. As stated above, BOTH sides engage in this rather poor example of living up to using their brain to process.

If this finding is accurate, where does Orwell’s newspeak fit in?

By 2050—earlier, probably—all real knowledge of Oldspeak will have disappeared. The whole literature of the past will have been destroyed. Chaucer, Shakespeare, Milton, Byron—they’ll exist only in Newspeak versions, not merely changed into something different, but actually contradictory of what they used to be. Even the literature of the Party will change. Even the slogans will change. How could you have a slogan like “freedom is slavery” when the concept of freedom has been abolished? The whole climate of thought will be different. In fact there will be no thought, as we understand it now. Orthodoxy means not thinking—not needing to think. Orthodoxy is unconsciousness.

Is it that we are subject to these sorts of force-fed, binary positions? Or is it that we are all likely to engage in these behaviors, but it is our duty to stop and think? And in thinking do we seek logical, supported positions, even ones that force us to leave a comfort zone but that may lead to better understanding or do we fake it and rest easy in what we want to hear and know as the fMRI study suggests? I believe that we are capable of breaking these lazy habits. It is not easy and the endeavor never ends. Still I am not sure what else it is we are supposed to be doing if not continually asking questions and engaging with the views we may not like on our way to better understanding.

image source: wikicommons, public domain


Department Stores, Computer Forensics, and the Private Police


The September 1st issue of the New Yorker includes a fascinating article (not yet available online, but here’s the abstract) by John Colapinto about the high-tech, mini-police departments being set up by department store chains to catch shoplifters. The article, which focuses in particular on Target, veers for a brief moment into one of my areas of interest–computer forensics. Target has hired a “senior computer investigator” named Brent Pack, a former Army computer crime investigator who helped analyze the Abu Ghraib photographs. Why does Target need a computer investigator? Mr. Pack

analyzes digital storage devices seized from suspected retail-crime gangs–BlackBerrys, photo memory cards, cell phones, business servers, and desktop computers. . . . At the moment, Pack was analyzing a hard drive seized by the police in a phony-check-writing operation that had victimized Target stores. “I’m going through here and looking for any evidence of check-writing software on any of their hard drives,” he said, pointing to the computer screen, which showed a JPEG of a blank check

Is it proper for the police to delegate its forensic work to Target? The FBI agents I used to work with as a DOJ computer crimes prosecutor kept a tight leash on the data they had seized and were reluctant to share data with state and local cops, much less private parties. They justifiably worried about ensuring that non-FBI analysts were staying within the scope of the warrant, because courts have suppressed electronic evidence obtained outside of the scope of the warrant and have even thrown out all of the evidence obtained if the warrant was executed in flagrant disregard of its terms. I’m not saying that the use of a third-party forensic analyst should automatically result in a flagrant disregard ruling, but it will invite scrutiny.

And even if one can justify the use of private forensics specialists generally, shouldn’t the police refrain from giving 500 gigabytes of personal information to victims of crimes? Because victims–even corporate victims–have a strong incentive to solve the crimes committed against them, might they not feel more pressure than a cop to look beyond the scope of warrants, peering deeply into the private lives of data owners?

I am even more worried about a much more troubling possibility: Is Target seizing cellphones and laptops from suspected shoplifters? Discussing another, anonymous store, not Target, Colapinto describes how suspected shoplifters get hauled into interrogation rooms and questioned at length by former law enforcement agents. In addition to this, are store security personnel frisking suspects and seizing electronic devices? I can understand how a department store might be entitled to engage in a limited search to look for its stolen property, but does this justify the seizure, retention, and subsequent analysis of cell phones and laptops?

Reading this Article kept bringing me back to David Sklansky’s excellent article, The Private Police, 46 UCLA L. Rev. 1165 (1999) (abstract). A decade ago, Sklansky traced the rise of private police forces, focusing in particular on neighborhood patrol services starting with Pinkertonism in the 1800’s. He noted that as these entities play a greater role in policing society, this might give rise to the kind of invasions the Fourth (and Fifth and Sixth) Amendment was intended to prevent. If Target is seizing cell phones from suspected thieves–and I must stress that it is not clear from this article that they are–it realizes Sklansky’s fears.


A Brief Encomium on Teaching the UCC

One of the fun things about teaching the UCC is that you can use it as a vehicle for showing to students the concrete implications of differing jurisprudential approaches. For example, this week in my secured transactions class we discussed the apparently mundane issue of what it means for a debtor to have rights in collateral or the power to transfer rights, a pre-condition for the creation of a security interest under 9-203(b) of the UCC.

The fun comes when you play around with various other sections of the UCC that allow possessors of property to transfer rights to goods that they don’t own. Hence, for example, under 2-403 a seller with voidable title can transfer good title to a good-faith purchaser (which includes a secured creditor), while an merchant entrusted with goods can transfer all of the entrusters rights in goods to a buyer in the ordinary course (which does not include a secured creditor). There is a certain enjoyment in showing how the different sections of the code fit elegantly together to provide concrete answers. Even more fun is the way in which the code provisions play havoc with many students’ intuitive understanding of what it means to “own” something or to “have title to it.”

The UCC, of course, is a child of the legal realists and the polemic against “transcendental nonsense.” Llewellyn, Gilmore, and their accomplices were trying as hard as possible to wring from commercial law abstractions like “title,” making the outcomes of cases turn on reasonable business practice (as understood by law professors, to be sure) rather than the manipulation of lawyers’ abstractions. The Code’s elegant — if at times counterintuitive — certainty on some questions provides a nice object lesson for the virtues of rejecting legal Platonism. At the same time, some of the Code’s persistent problems — like the train wreck that is 2-207’s approach to the battle of the forms or the persistence of certain circular priorities under Article 9 — shows the limitations of extreme legal nominalism. At times, it would seem that Langdell — or at any rate Williston — had a point.

The virtue of the Code as a pedagogical device for teaching the intellectual history of American legal thought is that can make jurisprudence concrete and practical in precisely the way that makes the law such a fascinating place for seeing philosophical rubber hitting the road.


Irrational Reactions?: Effects on Premature Obit for Steve Jobs

Apparently major news outlets have a practice of writing obituaries of famous people a little before they are dead. When one leaks, and it is about someone who has had some health problems in the past, the draft can cause a stir. That just happened when Bloomberg inadvertently posted its obit for Steve Jobs, Apple’s CEO. According to CNET, folks have even speculated that Jobs is ill again and gone so far as to demand that shareholders receive some sort of disclosure about his health. I have read that Berkshire Hathaway has begun a gentle move to prepare folks for a hand-off from Warren Buffett. Maybe Apple should take a similar approach. Nonetheless, are CEOs really evaluated based on whether they will keel over while in office? Some companies that seem to have super-strong and seemingly great CEOs who can handle ups and downs of a business may be great examples of the idea behind management matters. Others, however, have CEOs come and go (relatively speaking) and the free-agent styled system has to know that a CEO may jump for a host of reasons. This blip seems to highlight that some companies have long-haul management and some do not. One can imagine some pros and cons for having a strong almost cult-like leader and for having a professional manager who may have risen from within a large company or come from the outside.

A simpler matter is, as CNET notes, the effect rumors can have on a stock. Blogs and newspapers can and do publish at an extremely fast pace. My guess is that we will not change that and we may want that rush of information. The difficult part will be learning not to go on impulse and as one person argues that is what distinguishes humans from other creatures on the planet:

Counterintuitively, much of what makes us human is not an ability to do more things, … but an ability to inhibit automatic responses in favor of reasoned ones; consequently, we may be the only species that engages in delayed gratification and impulse control (thank you, prefrontal cortex).


Investing in Africa

africanmoney.jpgHere is a bit of good news. According to the WashPo, investors unimpressed by sluggish growth in the United States and Europe are looking for other places to put their money and are turning to Africa.

Foreign investment is pouring into the continent at unprecedented rates, doubling in recent years to around $39 billion, according to U.N. figures. In recent months, some investors have even appeared convinced that Africa might be a safer spot to sink their money than the shakier U.S. and European markets.

“People are looking for diversification,” said Hurley Doddy, chief operating officer of Emerging Capital Partners, a private equity group based in Washington whose investments in Africa have jumped from $400 million in 2000 to $1.5 billion this year. “A lot of the problems the U.S. economy is having, you simply do not have that in Africa.”

Of course, one might just as easily say that the United States economy does not have the same problems as the African economy, and ultimately $39 billion is not a big chunk of the international capital market. The other issue that the article does not explore is the extent to which this direct investment is going into extractive industries, especially oil. Turning petro-dollars into wide-spread prosperity is a tricky matter, and too often the availability of huge amounts of easy wealth simply makes political corruption/kleptocracy easier. Indeed, it is no accident that in the U.S. three of the states that have traditionally had some of the most corrupt and dysfunctional political cultures — Louisiana, Texas, and Alaska — are also (or at least in the case of Texas, used to be) essentially petro-states.

Still, foreign investment in Africa is good. It would be better if the story were in the business section rather than the international section.