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Anonymous Blogging: David Lat and Jonathan Adler

I’m at the panel on anonymous blogging at the Computers, Freedom, and Privacy Conference. Jonathan Adler (formerly Juan Non-Volokh) and David Lat (formerly Article III Groupie) told their stories about blogging under a pseudonym.

Adler explained that when he began blogging at the Volokh Conspiracy in 2002, he was unsure about how blogging would be received in the legal academy. It was Eugene Volokh that proposed the idea to Adler that he blog under a pseudonym. Adler said that his main reason for blogging under a pseudonym was not because of his political views but because he was uncertain about whether his colleagues would think his blogging would take away time and focus from his scholarship. Adler thought he’d be unmasked in about a year, and he was surprised that he managed to stay anonymous. Adler said that he probably wouldn’t blog under a pseudonym if he were an untenured professor beginning to blog today since blogging is generally well-received in the academy.

David Lat created Article III Groupie (“A3G” for short, a nickname bestowed upon Lat by Judge Alex Kozinski) in a way to make a persona with very different characteristics than Lat. When he first began blogging, Lat wasn’t very careful about blogging anonymously; he would email under his real name with the same IP address as he used in his blogging sessions and in his A3G email. Judge Kozinski once emailed A3G and asked: “Do you know about safe emailing?” Lat said no. Judge Kozinski then gave A3G a brief lesson in careful emailing. Afterwards, Lat took more care and began using anonymizing software.

Lat decided to come out because he wanted some recongition for his blogging. He really enjoyed blogging and was getting a lot of media attention for it. Some friends and others began figuring out A3G was Lat. He once received an email from someone who said: “Hey, wanna get coffee in Newark sometime?” (Lat worked as a federal prosecutor in Newark). Therefore, Lat began thinking of an exit strategy so he could go out on his own terms. The opportunity came when Jeff Toobin of The New Yorker wanted to interview A3G in person. Lat agreed to meet him for lunch. When Toobin saw Lat, his jaw dropped: “So you’re a guy??” Toobin said.

Lat said that the week after he revealed his identity was a stressful one. The U.S. Attorney office wanted him to stop the blog, but they didn’t threaten to fire him at all. But then the opportunity to blog at Wonkette, the popular political gossip blog, came along, and Lat left his job to blog full-time at Wonkette.

5

One Year in the Blogosphere

Today marks one year since I began blogging. I can’t believe I’ve been blogging for a year now. When I began blogging, I never thought I’d stick around this long.

I began blogging on May 4th, 2005 at PrawfsBlawg. You can read all of my PrawfsBlawg posts on one page at this link. I have also blogged at Balkinization, and my posts can be accessed here.

Over the past year, I’ve posted about 120 posts at PrawfsBlawg, 20 posts at Balkinization, and 325 posts here at Concurring Opinions. That’s 465 posts in 365 days — averaging over 1 post per day over a year’s time. My goodness! Something is seriously wrong with me . . .

For this occasion, I thought I’d reprise a post about my reflections on blogging after my first month. It seems that although I knew about the risks just a month into blogging, I foolishly ignored them.

How Blogging Changed My Life

An inspirational true story.

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2

No Longer A Nation of Miniature Coke Addicts?

The nation’s biggest soft drink manufacturers agreed today that they will no longer sell soda (or “Coke”, for those of us lucky enough to be born Southerners) in the nation’s schools. (Read the New York Times’ account here.) (Somewhat inexplicably, it’s still okay to sell diet soda and “fitness drinks” to high school students.) The deal was brokered by the Alliance for a Healthier Generation, a joint initiative of the Clinton Foundation and the American Heart Association. President Clinton, in announcing the agreement, declared his firm conviction that the soda companies have nothing but benevolent intentions:

“This is a truly significant thing for an industry to do, not entirely free of risks on their part, not only economic risks but backlash from the consumer. … And they did it, I believe, because … they care about the future of our young people.”

Call me a cynic, but couldn’t the threat of massive class action litigation have had a little something to do with it, as well? As reported by several media outlets back in December, the Center for Science in the Public Interest had teamed up with the anti-tobacco plaintiffs’ bar to bring a series of lawsuits in state courts to force the soda companies to give up their lucrative sales contracts with the nation’s schools. Back then, the industry was reportedly “gearing up for a counterattack” – for example, publishing their own studies that purported to show that the average high school student only drinks one can of Coke per week from a school vending machine (a claim that I personally find very difficult to, um, swallow). Apparently the industry decided that a quick surrender was a better way to go.

And in related news on the Arkansawyers-who-would-be-President front (see my previous post on the subject here), Arkansas Governor Mike Huckabee is getting some of the credit for brokering the agreement – and thus some much-needed publicity in his as yet-undeclared dark-horse candidacy for the 2008 presidential election. Huckabee – now being described by the New York Times as a “leader in the movement to help stamp out childhood obesity” – has clearly found an issue to call his own, and one that fits him to a tee. (For an insightful — and amusing — look at Huckabee’s chances, check out the incomparable John Brummett’s editorial on the subject here.)

All of which has me pondering the following:

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7

“America, You Lost!”

A Federal jury recommended a life sentence for Zacarias Moussaoui today. On the way out of the courtroom – as the spotlight began to move off of him – Moussaoui is reported to have said “America, You Lost!” Which immediately made me think of him as a combination of Nelson Muntz and Dr. Evil. Zacarias can learn about these wonderful products of our culture over the remaining span of his natural life, which he will no doubt spend pretty much alone in a supermax prison.

Commentators at National Review’s the Corner, on the other hand, apparently don’t see things the same way. John Podhoretz contributed the following gem:

“There is only one justifiable reason for a juror to make this choice. That juror has to believe the death penalty is wrong under any and all circumstances. To imagine that there can be any mitigating circumstance regarding Moussaoui’s actual guilt is moral idiocy of the highest order.

Alas, that moral idiocy was clearly at work in the jury deliberations.”

I’ve got to wonder why Podhoretz thinks we should bother going through the motions of a penalty trial at all?

2

Retaliation Against Workers at Immigration Rallies

Immigration and employment are closely linked subjects. After all, the 1986 Immigration Reform and Control Act criminalized an activity that we don’t normally think of as illegal – that is, the activity of work itself (when that work is performed without proper documentation). It’s been fascinating to follow the debate and to see the strange political bedfellows involved; congress is going to continue considering potential compromises. On May 1 these issues took center stage on the “Day Without an Immigrant” protests and boycotts (some of which continued past that day). For reports, see this CNN story and recent posts at ImmigrationProf here.

According to the print Wall Street Journal, however, the May 1 immigration rallies were somewhat constrained. If all of the 11 million workers who are working without authorization walked out on their jobs, that would cause serious harm to the national economy. The article raised the idea that the “strike” was muted in part because workers were afraid that they would be fired or otherwise retaliated against if they chose to take part in protests. The New York Times had earlier reported on retaliation against workers who had attended pro-immigration rallies.

Professor Paul Secunda over at WorkplaceProf offers the following intriguing analysis of retaliation for these protests building on a labor law theory:

From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.

Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace. To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.

Paul’s analysis certainly would lead to a progressive pro-speech / pro-expression outcome. But at the same time, walking out on work for this type of protest isn’t prompted by anything that the particular employer did. Attendance is a basic job requirement, and the employees could express themselves during non-work hours. Finally, if it is undocumented workers who are involved in the protest, the decision in Hoffman Plastics means that even if the workers were able to show that their rights had been violated, they wouldn’t be able to receive the backpay.

If all we’re left with is an employment analysis, then the remedy is even more constrained, since most workers are at will. I suppose there may be some kind of Title VII protection (for national origin discrimination) if all of the retaliated-against protestors are being treated more harshly than a worker of a different ethnic group who is absent for a day.

Interestingly, in another part of his post, Paul claims that most employers probably will not retaliate for self-interested reasons:

Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests. After all, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs. It would thus seem in these employers’ best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so

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I suppose that depends on which employers, or how employer “economic interests” is defined. If the laws are changed to allow illegal aliens to regularize their status, that means that the “threat of calling the INS” no longer will have any power over undocumented workers. And these undocumented workers may then choose to organize or push for other rights – rights that they haven’t felt comfortable asserting because of the fear of deportation. And the employers who are currently hiring undocumented workers don’t want that.

Now, if the government shifted the focus from deporting immigrants themselves, and instead cracked down on employers (who perhaps have brought additional attention to themselves by firing employees who are attending immigration rallies), I suspect that the burden of the law would fall much differently. We would see a whole different set of incentives come into play, and that might lead to meaningful immigration reform.

3

Electronic Surveillance Statistics for 2005

wiretap2.jpgThe Department of Justice (DOJ) has released its annual report on the number of Foreign Intelligence Surveillance Act (FISA) orders, Wiretap Act orders, and National Security Letters issued in 2005.

For FISA surveillance orders, 2072 applications were made to the FISA court; none were denied. Over the past few years, the number of orders has been steadily increasing:

2005 — 2072 applications approved

2004 — 1758 applications approved

2003 — 1724 applications approved

2002 — 1228 applications approved

2001 — 934 applications approved

2000 — 1012 applications approved

1999 — 880 applications approved

In all, only 4 applications have ever been denied. More statistics are on EPIC’s FISA statistics page.

One wonders what the statisics would have been had the Bush Administration properly gone to the FISA court instead of engaging in secret wiretapping by the NSA.

In 2005, according to the Administrative Office of the United States Courts, there were 1773 wiretap orders issued by courts under the Wiretap Act. In 2004, there were 1710 wiretap orders issued.

For the first time, statistics were released on the use of National Security Letters. According to the DOJ report:

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5

A T-Rex Named Sue

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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.

3

Farewell and Thanks

Many thanks to Dan Solove and the Co-Op gang for graciously allowing me to dip my toe into the blogging waters (an unlovely word, “blog,” I think, but never mind). I’ve enjoyed my stay and have appreciated the thoughtful comments.

As an avid blog reader, I’ve been fascinated by the many forms blogs can take: personal diaries, op-ed pages, clipping services, breaking news alerts, scholarly journals, news magazines, debate clubs, literary salons, and on and on. It’s this fascination that draws me in, resulting in a seemingly never-ending accumulation of browser bookmarks and a daily round-robin of reading in an effort to keep up with the many voices speaking, often simultaneously.

So when history considers what blogging hath wrought, I think the new pace of discourse will be high on the list. It’s thrilling to see debate about a new Supreme Court opinion take place hours after it’s handed down, rather than months later in the law reviews. But I wonder if the expectation of instacommentary doesn’t impose at least a small burden both on writers and on readers. The form risks our feeling as if we must be engaged in a constant discussion with one another, writing blogs, linking to other blogs, reading blogs, commenting on blogs ad infinitum. I am quite sure that I am revealing my own tendencies toward introversion when I say that this proliferation of speech is at times as exhausting as it is exhilarating.

I’m not proposing any changes here or solutions — to each his own panacea (if indeed a remedy is needed). Rely on intermediaries (such as Larry Solum’s excellent blog and Michael Froomkin’s new venture); read more selectively and resign oneself to the fact that conversations don’t stop simply because one leaves the room; or simply enjoy the fact that the marketplace of ideas is sometimes a Turkish bazaar: full of life, color, and a good deal of noise, but offering great treasures if you know where to look.

4

Alito’s First Death Decision

Alitocollege.jpgSam Alito’s first SCOTUS opinion arrived yesterday and – if you see the world through Cass colored glasses – it’s a liberal one: the defendant won. The issue in Holmes v. South Carolina was whether:

a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

The trial court excluded evidence suggesting that a third party had confessed to killing 86 year old Mary Stewart. Why? On the grounds that the evidence against the defendant was so powerful that any evidence implicating the third party could not raise a reasonable inference that the defendant was innocent. To put it another way, the case against Holmes was so good that the state was allowed to exclude evidence that another guy did it. No need to bother the jury with messy details. The South Carolina Supremes thought this was a fine idea as well.

This didn’t look like a hard case to me and the 9-0 vote thankfully confirmed that feeling. If a defendant possesses reasonably relevant evidence on the issue of guilt, we generally let the jury hear it. When, as here, a judge keeps this information from the jury, he or she effectively decides the outcome of a case. In rejecting this policy as unconstitutional, Justices Alito and Roberts proved that whatever their ultimate ideological place on the Court, they are not completely off the deep edge.

More interesting to me, though, is what was missing from the decision. Alito did not note that this was a death penalty case. His opinion stated that Holmes received a death sentence after his first trial, and that this trial and sentence were reversed by a state court. But nowhere in the opinion did he say that this new appeal was also from a death sentence. Why is that? Perhaps it was an oversight. Or maybe Alito thought the underlying sentence was an unnecessary fact. If so, why did Alito note Holmes’ capital sentence after his first trial? Perhaps he didn’t want to highlight this as a death case. He might have felt uncomfortable reversing a death sentence in a heinous killing. Or maybe he didn’t want the case framed as a “death decision” – with all the attendant baggage – and instead cast it as a plain old evidence ruling.

This is a small detail to be sure, but Alito surely knew his first opinion would go under a microscope. The odds are that this omission was not strategic. But if it was, I certainly hope that it does not portend a broader willingness to omit uncomfortable facts.