Category: General Law



I wanted to share the exciting news:  the President of our University signed off on my faculty’s recommendation of tenure and promotion to Professor of Law.  I am so grateful to my anonymous reviewers and to everyone who has mentored me along the way.  Thanks CoOp community!


The Craigslist killer and your crim pro exam

I can tell that I am deep in exam grading because when I read news updates about the Craigslist killer, instead of pondering questions like whether his girlfriend will continue to stand by him, I am focusing on all the great questions that can come out of the case for use on a crim pro exam next year. Consider the question of joinder, for example, an incredibly important issue in real-world criminal practice but a topic that, in my experience, receives relatively little attention in a typical crim pro course. Can the two Massachusetts crimes, the robbery and the robbery/murder, be joined together in a single trial? The relevant portion of Federal Rule of Criminal Procedure 8(a) allows the government to charge multiple offenses together in a single indictment if they are “of the same or similar character.” Does finding your victims through the same online resource constitute enough of a similarity to make this a true signature crime? Would the evidence of the murder be so prejudicial if the robbery case were tried alone that a judge should order severance under FRCP 14? There should be some very interesting pre-trial motions when — and if — the case ultimately makes it to that stage.


Privacy Rights vs Architects of Our Own Doom

In recent months, I’ve noticed several comments in privacy literature that mention the importance of acknowledging the role individuals play in protecting their own privacy.  In other words, those (like me) who have advocated strengthening privacy-protections in the digital age need to face the question of the balance between legal privacy protections on the one hand, and the responsibility of individuals to keep some measure of control over their personal information on the other.  Of course, it’s harder to maintain as much control over personal information in the digital age than it is in the physical world.  Nevertheless, most of us would acknowledge that individuals should take whatever reasonable measures they can to maintain the privacy/secrecy of things they do not want the world to see online.   This balance between state imposed privacy protections and personal responsibility for private information raises a number interesting questions including:

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Deconstructing the Put-Option State

Larry and David Zaring have a thoughtful piece making the case against an overly exhuberent regulatory response to the financial crisis.  There is a lot of wisdom to what they say.  At its bottom, however, it seems to me that the keygovernment failure lay not in our regulations but in our political culture.  As Simon Johnson (of the must-read Baseline Scenario blog) observes in the most recent issue of The Atlantic, our current debacle looks less like Wall Street circa 1930 than Indonesia circa 1997.  The problem is not that we are reaping the whirl-wind of unregulated markets run amok, but rather that we are reaping the whirl-wind of a system where politically powerful business actors get the up-side of huge risks, while they can push the downside on to the public.  We are living in the put-option state.

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Cyberliterature: The Next Generation…

In an attempt to catch up on some cyberlaw reading, one issue has caught my attention about a number of recent publications.  More and more authors are now focusing their work squarely on the new generation of “digital natives” and their experiences of the Internet and associated technology.  Examples of this are Lawrence Lessig’s “Remix“, Henry Jenkins’ “Convergence Culture“, and John Palfrey/Urs Gasser’s “Born Digital“.  As was pointed out last year in a number of sessions at the First Annual Privacy Law Scholars’ Conference, hosted by our blog-master, Dan Solove, this generation has very different experiences to past generations as they are the first generation to be born with – and to grow up surrounded by – all of this technology that we are now beginning to take for granted.  It is an interesting shift in the literature that some of the more prominent “digital immigrants” are now focusing their work on the “digital natives'” point of view.


Terrorist Watchlist, Troubling Flaws Revealed

Last week, I wrote about how crude algorithms in the name-matching “No Fly” system produce an outsize number of false positives as a matter of deliberate policy.  We are willing to tolerate additional delays so that we can stop terrorists from flying.  Yesterday, the DOJ’s Office of the Inspector General issued a report that seriously calls into question the bargain that we have struck with regard to the “No Fly” system.  The report explains that the FBI (the agency amassing the list that is then matched to travelers’ names) has incorrectly kept 24,000 names on the terrorist watch list on the basis of outdated and irrelevant information, while “missing people with genuine ties to terrorism who s120px-021101-n-0780f-0041hould have been on the list.”  According to the report, these mistakes not only posed a risk to national security due to the failure to flag actual terrorist suspects, but also created unnecessary delays and detentions for innocent travelers.  A fact of great concern: the Inspector General sampled 216 FBI terrorism investigations and found that in 15% of them, a total of 35 subjects were not referred to the list even though they should have been.

During a talk that I gave last week for Princeton University’s Center on Information Technology Policy, Ed Felten (who served on TSA’s Secure Flight Study Group where he studied the No-Fly mechanism) explained that there are two aspects to the no-fly list, one that puts names on the list and the other that checks airline reservations against the list.  The two parts operate separately from each other.  The FBI heads up the first part, putting names on the list through a secret process that seemingly requires that people on the list be a sufficiently serious threat to aviation security.  The other part is the one that I wrote about last week: a data-matching system that checks travelers’ names against the list.  Because the matching algorithm requires only an approximate match (because flight reservations so often have misspelled names), we have many false positives so that we can sweep within the system the right match, i.e., the terrorist suspect, along with many innocent others.

So here is the rub: we are willing to live with so many false positives because we trust those amassing the list to ensure that it is accurate and complete.  In other words, it worth all of those false positives if indeed they serve the greater good.  Yes, we will endure the delay and perhaps inability to fly if indeed our names are akin to someone’s who is correctly suspected to be a terrorist.  But preventing innocent individuals from flying, or subjecting them to questioning, based on matches with other innocent people’s names while failing to do enough homework so that you let real terrorist subjects board airplanes with no hassle?  Really?  This report suggests reconsidering having a “No Fly” system in its current form at all.

Thanks to Wikimedia Commons for the picture


Smart. Smart! Smart?

Oliver Wendell Holmes

Oliver Wendell Holmes

One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue.  Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.

It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance.  Rob Kar, in her defense, writes:

“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.”

I’m not sure that Prof. Kar is entirely serious here, but his post was picked up by TPM in its influential roundup, which noted the spreading of the idea that Sotomayor was “too temperamental–and not intelligent enough–” to be a Justice.

There’s plenty wrong with this mindset. Not least, as Bill Stuntz points out, “[intellectual] horsepower alone isn’t enough to produce a lasting impact on the law.” Vivid writing matters, as does judgment, and an appropriate sense of judicial role and temperment.  And, since the Justices are the highest profile lawyers in the country, so does personal history and demographics: lawyers should have professional models, to guide them in making hard decisions in the absence of judicial oversight.

As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest.  Or at least someone who understands that smartness correlates with wisdom about as well as law does to justice.


Code Cracking at the C.I.A. — Maybe They Should Call the N.S.A.?

200px-cryptonomicon_1stedWired reports that a sculpture at the C.I.A. has a sculpture made of copper with a code that so far has not been cracked. The artist James Sanborn created Kryptos which sits in a space that no one can see. Nonetheless, the encoded text from the sculpture is available here. It has been twenty years since the sculpture was installed. Now here is the part I love. There is a subculture of people trying to break the code.

The C.I.A. released the code to the world and it seems that many cryptographers have attacked the code. Three sections, K1, K2, and K3 have been decoded but that took seven years (the article has a picture of the code and the key). The last bit of code, K4, however, has yet to be deciphered. Apparently the artist, Sanborn, received some cryptography training from Ed Scheidt, former head of Langley’s Cryptographic Center. But Sanborn is the only one who knows about the key.

The stories of many people trying to crack the code including changing jobs to have more time to work on it and a 1300 member Yahoo! group are wild. The article also details the frustration people feel at Sanborn for not sharing the code and the on-going dance where would-be code breakers follow Sanborn’s statements for clues and suggest Da Vinci Code style theories (a picture of a piece of the sculpture is on the book cover. (An oh here is a good one for the IP minded: Dan Brown has indicated that he wants to use the sculpture as part of a book about the C.I.A. God help us all.) Whether Sanborn will ever give up the code is unclear, and he hints that he may not.

Maybe we’ll be lucky and Neal Stephenson will write a Cryptonomicon sequel that beats Brown and solves K4.