5

FDA Lets Morning After Pill Go OTC, Partially

After a few years of paralysis, driven by the political views of its conservative base, the FDA finally followed the experts and authorized over the counter sale of a morning after contraceptive pill. It limited sales to those 18 and over. I can’t imagine this was a purely bureaucratic decision. I assume this means that the Republicans now feel they’ve earned enough cred with the Right that they can stray a bit and try to win a few independents. That, or they’re desperate to keep control of some shaky moderate districts.

But for an administration that seems more intent on obscuring science than utilizing it, this is one small nugget of good news.

4

Pi v. Delta

pie.pngIn law student notes, plaintiffs are commonly denoted by π, and defendants by Δ. Even as I slavishly replicated this tradition as a student, I never understood it. Why are plaintiffs associated with “infinite . . . expansion . . . an irrational . . . indeed, a transcendental . . . expression“? And defendants a symbol variously matched with a proofreading symbol for deletion, the difference operator, and baryons?

Paging Nate Oman: a neat history of law problem to answer!

Update: An actual case suggests the practice is old. Pi v. Delta, 175 Conn. 527, 534, 400 A.2d 709 (1978) was a strange habeas proceeding for custody of a child. The case name is, alas, a fiction:

Upon the suggestion of the parties and in accordance with the spirit and intent of the order of the Superior Court granting the plaintiff’s motion to substitute fictitious names, it is ordered that the names of the parties involved in this appeal shall not be disclosed and that the records and briefs shall not be distributed to the various libraries of the state by the Reporter of Judicial Decisions. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of this court.

13

Podiatrists For The Hand

A brief email interchange with one of our readers – my mom – led me to a burning question. Why isn’t there a medical specialty for the hand? Feet have their own docs – podiatrists. And hands seem to get almost as much hard use as the ol’ dogs. What goes wrong with the hand, you say? There’s arthritis, carpal tunnel (which is certainly within the metro area, if not in the hand per se), and a host of minor catastophes when fingers show up where they oughtn’t be. Perhaps there are good medical or market reasons for this gaping hole in the medical service field. But if not, perhaps now is time for President Bush to issue a national call. Forget engineers. Forget chemists. Forget ethnomusicologists. (Oops, I think we already have.) Podiatrists for the hand, I say!

Which reminds me. If you’re going to be in NYC this weekend, let me commend to you an amazingly bizarre and fun pair of one-acts, Americana Absurdum, playing at the Lucille Lortel Theater as part of the NY Fringe Festival. The plays, written by Brian Parks, feature an odd character who sells “foot powder for the head.” Perhaps he’s on to something there.

17

The Pleasure Of Transgression: Foie Gras And Other Crimes

Two things people seem to like: duck liver and lawbreaking. Yesterday, in Chicago, diners and restauranteurs revelled in the transgressive pleasure of eating foie gras. They ate it on Connie’s pizza (and let me confess a profound soft spot for Connie’s, where my dad used to take me before White Sox games); they enjoyed it at Harry Caray’s; and they even chowed down at BJ’s Market & Bakery, a soul food joint on Stony Island (on the South Side, where I grew up.) But Chicago recently adopted an ordinance banning the sale of this fatty food product on the grounds that the ducks and geese that provide the delicacy are abused. The restaurants serving foie gras yesterday were breaking the law.

Both the Trib and the NY Times featured the story of the outlaws who ate the evil liver. (Curiously, these two stories covered remarkably similar ground. I’m thinking that either these reporters are copycats or someone put out a press release directing eager reporters to the same dining establishments.) It’s clear that restaurant owners and customers were downright happy to break the law. But wait a minute. This is the law here! That incredible institution that must be respected, lest the entire society be put at risk. Or not.

Law-breaking is a powerful source of pleasure for many people. We elect representatives to set speed limits, and routinely violate them. Those same legislators create open liquor ordinances which we flout at outdoor concerts, parades, and other festive occassions. They ban gambling, and we ignore them. Even Justice Rehnquist got into law breaking; his chambers sponsored the NCAA pool at the courthouse and he even he hosted an election night pool involving the ’92 Bush-Clinton race.

Crime isn’t the only transgressive pleasure. Take the briefest detour down the path of the Internet Porn Machine – or save yourself the effort, and read your spam folder – and you’ll soon discover a smorgasbord of socially-proscribed delights. Smoking cigarettes has become much cooler now that it’s prohibited everywhere. And let’s face it. Eating super-fatty meat products like foie gras has become a social violation in many quarters. But the truth is, people love actual lawbreaking. Sure, if nothing else is on the tube, we’ll watch the CSI team fight crime. But true TV pleasure comes when we root for Tony Soprano, cheer for the Hendrickson family on Big Love, or laugh with the 420-ready housewife on Showtime’s Weeds.

Many criminal laws are designed to protect society from serious harm. Others are less essential, and reflect the preferences of particular powerful groups. And in many respects, the best way to show opposition to the ruling majority – to take a public stand against the regulators and with our nation’s wild past – is to break a few laws. Or perhaps less dramatically, lawbreaking is one small way to assert one’s individuality against the rigidity of state regulation.

Over the years, I’ve met my share of self-described rule-followers. But scratch the surface and you’ll usually find these people have identified at least one offense that they deem unworthy of respect. Or simply well-suited to producing the pleasure of transgression.

3

Privacy on the Road

From the New York Times, a nice little piece about privacy (or lack thereof) on the road:

Using a public computer can also mean courting trouble, because data viewed while surfing the Web, printing a document or opening an e-mail attachment is generally stored on the computer — meaning it could be accessible to the next person who sits down. (To remove traces of your work, delete any documents you have viewed, clear the browser cache and the history file and empty the trash before you walk away.)

“You also run the risk that somebody has loaded a program on there that can capture your log-ins and passwords,” Mr. Louderback said, recalling an incident a few years ago when a Queens resident was caught installing this type of “key logger” software on computers at several Kinko’s locations in New York.

As the article points out, it’s a scary, scary world out there. Public computers can be searched for passwords or equipped with malicious keyloggers. Wiireless hot spots can be raided with packet sniffers. There are software solutions for getting around these, but the easiest solution is also the safest:

Absolutely never check your bank account on a public computer. And be careful about checking it on a wireless hotspot.

One thing the article lacked was a real discussion of how prevalent this kind of identity theft is. What are the statistics on this kind of thing, Dan? How much identity theft (or for that matter, data theft) comes out of these kinds of interactions – do we have any ideas?

6

Post-Nuclear Holocaust Movies and the Academic Job Market

thunderdom.jpgGordon Smith has a post about interview questions for prospective law professors. Having recently run the gauntlet of the meat market, this is a topic where memories are still fresh in my mind. I remember one question in particular. It was during an on-campus call back interview. I gave my job talk — a piece on the relationship between autonomy theories of contract and corporations — and then waited for the faculty questioning. By this time I had given the paper about a half dozen times, and I thought that I pretty well knew what points were going to get raised. Not so. A faculty member raised his hand and asked the following question: “Can you please explain to me how autonomy theories of contract would deal with the remedy provided for breach in Mad Max Beyond Thunderdome where the rule is ‘break a deal, face the wheel’?”

Mad Max Beyond Thunderdome, of course, is the classic Mel Gibson-Tina Turner movie about life in Australia after a nuclear holocaust has destroyed civilization as we know it. Those who breach their contracts in the post-apoclyptic world must spin a wheel — rather like the Wheel of Fortune — on which are written various punishments. Whatever punishment the wheel lands on is meted out to the breaching party.

I replied by pointing out that a commitment to an autonomy theory of contract requires a rather more expensive enforcement mechanism, because it is necessary for adjudicators to invest resources in discerning the actual intent of the parties in so far as they are able, rather than relying on cheaper, more formalistic modes of interpretation. Presumably in the post-apoclyptic world, the resources that society has available for the resolution of contractual disputes are reduced, and therefore they adopt remedies rules that require less fact finding. Spinning the wheel, for example, doesn’t require that the court invest any additional resources in calculating the value of the disappointed promisee’s expectation measure. In a world, however, that has not been devastated by nuclear war, society has the resources to devote to a more nuanced approach to contractual disputes, although if we take efficiency as the sole goal of contract law, then a process of largely randomized remedies like the wheel may be superior.

I thought it was a pretty good answer. On the other hand, I didn’t get an offer from that school…

0

Enhancing Academic Reputation in the US News Rankings

usnwr1.jpgBrian Leiter has an interesting post about advice for law school promotional brochures, otherwise known as “law porn.” I’ve always wondered whether such brochures are effective at enhancing a law school’s academic reputation in US News. I doubt they are. US News assesses academic reputation as follows:

Peer Assessment Score (.25)

In the fall of 2005, law school deans, deans of academic affairs, the chair of faculty appointments, and the most recently tenured faculty members were asked to rate programs on a scale from “marginal” (1) to “outstanding” (5). Those individuals who did not know enough about a school to evaluate it fairly were asked to mark “don’t know.” A school’s score is the average of all the respondents who rated it. Responses of “don’t know” counted neither for nor against a school. About 67 percent of those surveyed responded.

At any given school, only four people are doing the rankings each year — the dean, dean of academic affairs, appointments chair, and most recently tenured faculty member. That’s not a lot of people; nor is it representative of a law school faculty. To improve reputation over time, the most logical strategy would be to target the raters most likely to be repeat players — the deans. The deans account for 50% of the ratings, so why not just target the deans in mailings? These are the people who have the most impact on the ranking of law schools.

I doubt a glossy brochure will have any palpable effect on changing most deans’ assessments of various law schools. In fact, I wonder to what extent even adding quality law professors to the faculty will alter this rating. Every year, there’s a big shuffle with professors lateraling to different schools, but how many deans spend much time pondering over what schools had net gains or losses in faculty quality? Brian Leiter’s rankings ask professors to consider this, but not US News.

So here’s my idea for the most efficient way for a school to enhance its academic reputation: Reach out to the deans! Invite them to speak at workshops and conferences. Roll out the red carpet for them when they visit your school. Have your law school’s deans and professors schmooze with other law school deans at various events.

The US News academic reputation scores range from 1 to 5, with 5 being the highest. Basically, the goal is to convice the deans that your school should be ranked a notch higher on the form. My sense is that a glossy brochure will find its way quickly into the trash bin, and these brochures are costly to produce and send out. Perhaps the money is best spent on reaching out to the deans and trying to impress them. What dean wouldn’t rank your school a 4 rather than a 3 after being treated to lavish visit to your school, staying at a luxurious hotel, participating in an interesting conference, and having a fancy dinner accompanied with fine wine?

7

Introducing Drexel University College of Law: Drivers Wanted

I’ve been busy recently, helping construct a law school at Drexel University. So it seems appropriate to introduce the institution that stole my time (but never my affections) from Concurring Opinions. I hope to blog more about the process of builiding a law school in upcoming weeks.

What is Drexel University College of Law? It’s a new law school affiliated with Drexel University – a large research university located in Philadelphia, right next door to Penn. (Drexel students and faculty benefit tremendously from Penn’s massive investment in the University City neighborhood.) Drexel University’s recent history has been pretty remarkable. It has grown from being a solid engineering school to a major education destination in the region. The University increased its endowment from $90 million to $550 million in ten years, added a medical school, and doubled the undergraduate student body. A little over a year ago, the University announced a plan to open a law school. In the past hectic year, the College of Law was born – and it’s looking pretty good. We (notice how I move to first person plural now?) have a smart, productive and energetic faculty that is as impressive in person as it is on paper. (Puffery, anyone?) At the same time, our admissions team produced a quality entering class – despite the fact that Drexel cannot even seek ABA accreditation until next year.

Consistent with the University’s famous co-op program (“The Ultimate Internship”, according to Drexel’s registered trademark), the law school will have a experiential focus – with co-op placements available for all students. And playing on the U’s strengths, it will initially offer concentrations in health law, IP and entrepreneurial business. (We’ll leave the value of such concentrations for another day’s discussion.) What Drexel Law doesn’t have, for the next couple of months at least, is a building. But really, who needs a building?

My initial reviews of the experience of working at Drexel are pretty wonderful. I’m having a lot of fun, and I really look forward to work each day. (Farfegnugen, anyone?) Sure, little problems surface regularly, the buck stops with each of us, and each day’s agenda is subject to change. But this is entrepreneurship, on someone else’s dime. Anything is possible.

Oh. And one more thing: we’ll be doing some aggressive hiring this fall. People often talk about the amazing law faculty one could build if only one could start from scratch in today’s market. Funnily enough, that’s what we’re trying to do here. Our job annoucement is after the jump.

Read More

8

The Ten Greatest Privacy Disasters

Wired News lists what it considers to be the 10 greatest privacy disasters:

10. ChoicePoint data spill

9. VA laptop theft

8. CardSystems hacked

7. Discovery of data on used hard drives for sale

6. Philip Agee’s revenge

5. Amy Boyer’s murder

4. Testing CAPPS II

3. COINTELPRO

2. AT&T lets the NSA listen to all phone calls

1. The creation of the Social Security Number

See the Wired article for its explanations. It’s a good list, but there are a few problems. Although we still don’t know all the details of the NSA surveillance program, it’s not worse than COINTELPRO, which involved massive surveillance of a wide range of groups, the wiretapping of Martin Luther King, Jr., attempts to blackmail King, and more. The Social Security Number has indeed led a ton of problems, but the fault doesn’t lie with its creation. Rather, the problem is mostly the expanding use of the number and the failure of the government to reign in government agencies and business from using it. CAPPS II, while flawed in its conception, should not be so high on the list.

Some notable omissions: Where’s Total Information Awareness? What about Olmstead v. United States, 277 U.S. 438 (1928), where the Supreme Court held that the Fourth Amendment didn’t regulate wiretapping? Olmstead led to nearly 40 years of extensive abuses of wiretapping before it was overruled. There are countless other Supreme Court 4th Amendment cases that could arguably be listed, but I’d definitely include Miller v. United States, 425 U.S. 435 (1976), which created the third party doctrine which holds that the Fourth Amendment does not apply to personal records possessed by third parties. Another possible inclusion: The birth of J. Edgar Hoover.

Hat Tip: Bruce Schneier