Where Credit’s Due?

In recent months, in widely varied contexts, bloggers have expended a non-trivial number of words trying to divine a proper citation policy for writing on the ‘net. It’s the kind of activity that ought to set law review articles editors’ hearts-a-flutter, were they not engaged in the project of footnote generation editing and studying. See, e.g., the Domenech controversy (instigation; synthesis; resolution; Malkin’s moral: “the determined moonbat hordes . . . painfully . . . are right.”); the AP-citation brouhaha; the RibsteinBaude discussion on citation as a norm/quality warranty; and yesterday’s discussions about Prawfs’/OrinKerr’s “need” to credit Xoxohth for their early posting of the ’07 USNews Rankings

Are all of these situations the same? What distinguishes them?

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A Conspiracy of Paper-Pushers

Perhaps you have wondered why the money that law school professors pull down is only obvious at certain law schools subject to state cognates of the Freedom of Information Act. Antitrust may be the culprit. Pursuant to a consent decree with the United States resolving a case brought under the Sherman Act, the ABA’s school accreditation committee has, among other things, “agreed to refrain from using law school compensation data and from adopting or enforcing any standards that have the purpose or effect of imposing requirements as to the base salary, stipends, fringe benefits or other compensation paid to law school deans, administrators, faculty, librarians or other employees.”

This consent decree sunsets on June 25, after a ten year run during which a number of new law schools entered the market, and salary data got enshrouded in an aura of mystery. Did the consent decree affect legal education, was it a good thing, and what will happen when it expires?

Antitrust ain’t my raison d’etre. I only wonder – and I confess I only wonder this because of a tip from a colleague – if the law reviews, with their concerted action on article length are going to be the next up against the wall. [ed. Uh, the article length thing isn’t commercial and varies from review to review. Oh really? Each of the eleven law reviews that got the ball rolling on article length signed on to a joint statement, each is “committed to rethinking and modifying its policies,” presumably at the behest of the other ten, and each is “actively exploring how to address” article length in concert with one another. So I recommend against loose talk around Thomas Barnett.]

Anyway, I farmed this one out to an expert. I asked Josh Wright, a prominent and businessey professor blogger, what he thought about the sunset of the ABA accreditation decree, in exchange for an offer to cross-post the result. Here’s what he said:

“The consent decree prohibited activity that was plainly anticompetitive: colluding with respect to faculty salaries and other benefits as well as boycotting non-ABA approved schools. Forcing existing law schools to face competition from schools, even those that offer lower salaries and fewer amenities, can only improve legal education. However, my guess is that the expiration of the decree will not tempt further collusion, because any such attempt would be both highly visible and likely to attract antitrust scrutiny.”

But Josh and I would welcome further thoughts.


Outsourcing Our Data

convergys1.jpgA growing data privacy issue is the outsourcing of personal data. Increasingly, US companies are outsourcing data processing to other countries. Although the United States lags much of the world in data protection, our personal information is being sent overseas to many countries that lack the same level of privacy protections as the United States. This can create risks that the data can be misused for identity theft or for fake identification. It could also create national security concerns.

There’s a big outsourcing controversy brewing in Florida, where Governor Jeb Bush made a multimillion dollar deal with a company called Convergys to process personal data, including Social Security Numbers and financial information. Convergys then contracted with another company that then outsourced to India. According to the Tallahassee Democrat:

The Tallahassee Democrat reported Dec. 25 that two former employees of GDXdata Inc. had secretly sued their ex-employer, saying the company improperly sent Florida employee records to companies in India, Barbados and possibly China for some processing steps involving the People First system. People First is Gov. Jeb Bush’s biggest “outsourcing” project – a nine-year, $350 million deal with Convergys – and all employee records are supposed to stay within the country.

Democratic legislators and U.S. Rep. Jim Davis of Tampa, a candidate for governor, called for an investigation of possible identity theft. Unions representing state employees urged DMS to make Convergys buy insurance to protect emloyees against fraudulent use of their personnel information.

Argenziano had scheduled a presentation by DMS Secretary Tom Lewis for her Senate Governmental Oversight and Productivity Committee meeting. But she said Lewis is meeting with top Convergys officials this week and “is not happy about some of the things he’s finding.”

The suit was filed under seal in Leon County Circuit Court, seeking to collect damages on behalf of the state for alleged irregularities in People First records processing. It did not accuse Convergys of any wrongdoing and the employee-services giant said at the time it had dropped GDXdata as a subcontractor for unexplained failure to do work as provided by its contract.

GDXdata said it would vigorously defend the suit. The plaintiffs said the company sought to cut processing costs from 6 cents to a penny per page by sending work overseas.


The Joys of the Nasty Letter

letter.jpegOn the topic of ways to make law-folks happy, you should read this brief article about Pittsburgh coroner Dr. Cyril Wecht. Wecht has been indicted on federal public corruption charges, including using employees to further his political ambitions. One such employee allegedly typed out the following letter, in response to a citizen who had criticized Wecht’s political ambitions:

Mr. Sueker:

When I am testifying as an expert witness in major cases around the country; appearing on national television and radio shows; lecturing at major universities; writing books; accepting honors and accolades from various organizations; and making a hell of a lot of money, I have found that I am able to enhance and sustain the substantial pleasures and great joy that accompany such endeavors and accomplishments by thinking of insignificant a——- like you.


Cyril H. Wecht, M.D., J.D.

Hee: the JD tag makes this story doubly-true. Writing nasty letters is one of the anti-social, but undeniable, joys of being a litigator. I can well recall associates in my Firm passing around particularly tough examples of the craft, commenting on them in the way that (I imagine) young Huns gossiped about Tamerlane’s piles of skulls. A little horrified; a little disgusted; a little jealous. Wecht’s letter is a nice example of the genre. Do readers want to share others?


We Can All Say We Knew Him When

Todd Kim, my former co-clerk, has just been appointed to be the first ever Solicitor General of the District of Columbia, and he’s part of a notable trend in state SG personnel. Two Jones Day appellate lawyers have left that firm’s schmancy appellate practice to become state SGs, as have a number of other ambitious Washingtonian types eager for Supreme Court arguments. The job offers interesting exit options as well: Greg Coleman left Texas’ post to become a commerical litigator with a Supreme Court practice at Weil Gotshal; Jeffrey Sutton went from being the Ohio SG to being a judge on the Sixth Circuit. So while everyone’s bursting with pride about Todd, we’re all wondering what’s in his future. Will Todd decide to be a judge or a millionaire? It’s something of a catch-22, and so I hope we can all sympathize with him during this no-doubt difficult time.


Advice to Starting Law Professors: Don’t Give Advice?

Over on Prawfs, Dan Markel instigated a nice thread collecting advice to incoming professors. Something that hasn’t gotten discussed in this recent round of posts (although it has been in the past) is what a law professor should do when a student asks for help with a legal problem. This happens with some frequency to me – as a contracts teacher, I get asked a handful of times a semester to consult on a lease (for the student or a relative) or an employment agreement. I imagine that other professors get different types of questions (the property-suite of subjects is similarly vulnerable; federal courts probably isn’t).

These questions create a difficult problem for junior professors in particular. If you aren’t a member of the state bar, you obviously can not ethically practice law. Most professors have not bought malpractice insurance. Providing advice, even when insured and barred, fundamentally changes the student-teacher relationship, and may get you in a heap of trouble with the administration and students you do not help.

But failing to give students what they want can get you into trouble. And the first (and second and third) time this happens to you, you will be strongly tempted to read the lease, or parse the will, and suggest a course of action. Is there a way to let students down without creating ill-will?

In the comments to this thread, folks should feel free to (a) disclose interesting examples of requests for legal advice and how they handled it; and (b) follow-up on the issues raised when professors actually give advice.

[Topic Suggested By: Temple Law Freedman Teaching Fellow Meredith Miller, who will be joining Touro Law in the fall.]


Georgia v. Randolph and Consent to Search One’s Home

house1.jpgOnce upon a time, a wolf came to the home of a little pig:

Wolf: “Hello, little pig, let me come in.”

Pig: “No, no! Not by the hair of my chinny chin chin!”

Wolf: “Well, then I’ll huff and I’ll puff and I’ll blow your house in.”

Pig’s Wife: “That won’t be necessary, Wolf, come in, come in.”

But it’s not yet time to rewrite the tale of the Three Little Pigs.

Last week, the Supreme Court decided Georgia v. Randolph, a Fourth Amendment case involving where the police searched a couple’s home. The wife (Janet Randolph) consented to the search; the husband (Scott Randolph) expressly refused consent to the search. The police searched anyway and found evidence of Scott’s drug violations. Can the police search a person’s home when he expressly refuses to consent yet when a co-habitant consents?

The majority of the Supreme Court held that the search violates the Fourth Amendment (Justices Souter, Stevens, Kennedy, Ginsburg, and Breyer). Chief Justice Roberts, along with Justices Scalia and Thomas dissented. Justice Alito did not participate.

What makes this case difficult is that it seemingly fits within several different strands of Fourth Amendment doctrine that are not entirely coherent. In the end, I believe that the majority got it right, but I think that the case presents a very tricky issue given existing Fourth Amendment doctrine.

It is clear that Scott had a reasonable expectation of privacy in his home. The general rule under the Fourth Amendment would be that the police need a warrant to enter and search a person’s home. However, one exception is if a person consents to the search.

But what if two people have control over the area that is to be searched or the things that are to be seized? If Scott weren’t home, Janet’s consent would allow the police to validly search the home. In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that the “consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” In Illinois v. Rodriguez, 497 U.S. 177 (1990), the Court held that even if the police wrongly believe that the person consenting to the search has authority over the property, the search is valid so long as the police error was reasonable and in good faith.

This case differs from Matlock in that Scott is present, not absent. And Scott has expressly denied his consent. Whom are the police to listen to — Janet who consents or Scott who doesn’t?

Chief Justice Roberts, in dissent, notes that the Court’s holding “provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room.” At first blush, he seems to have a point. The result is odd — if Scott weren’t there to say no, the cops could come in and search. So why should things turn on whether Scott luckily happened to be there when the cops came knocking? The majority opinion finesses the issue but doesn’t really do a good job of explaining a difference.

I believe that there is an important difference, and I explained it in an earlier post. I wrote:

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More On Serendipitous Research

I’ve been giving more thought to my earlier post describing my alter ego as a stack rat. I noted that one downside to the digitization of libraries is that researchers will have fewer serendipitous moments. When one searches out a book with a given call number, he or she almost inevitably confronts related (or simply interesting) volumes that live nearby. I can think of many times when this process led me to useful books that I’d never heard of before. As more and more research is done online in our offices (or perhaps in our den/guest room – you know, the rooms where Barbies and My Little Ponies inexplicably like to congregate despite instructions to the contrary), we no longer happen upon these accidental wonders.

But things are bound to improve. With digitization comes the potential for new serendipities. It’s all in the hypertext. Think about Lexis and Westlaw. When I research a case, a large portion of an opinion’s references can be found with a click. Most commonly, these links take us to cases and articles. But what if their materials also included weblinks?

Of course, a large portion of scholarship outside of law (particularly articles) is also available digitally through JSTOR, Academic Search Premier, and the like. The problem is that, for now, these materals don’t contain hyperlinks. These PDF documents look nice, but they are digital dead ends. But what if these documents also included hypertext links? And what if all the new digital books did as well?

Imagine the fun! Every time I came upon an interesting citation, I could charge off into a fresh diversion. One curious quote, one odd source, and with a single mouse click – BAM – I am back in the deepest corner of the stacks exploring unexpected treasures. We’re not there yet. We’re actually in an unfortunate middle period. Increasingly we abandon the physical library, doing our research at our computer. Yet this wonderful technology has not advanced quite far enough to provide us with new serendipitous moments. But for those people who dream of the day that they can do all their research without ever moving their sedentary buttocks, buck up! Serendipity awaits.


Making Law Professors Happy

grades.jpegMichael Livingston (Camden-Rutgers) has a relatively new blog that I just came across. Last month, he offered an interesting set of observations on why law professors, who have objectively wonderful jobs, are often so darn nervous and angsty. Here is a taste:

The answer is provided by the theory: they behave in this manner because they are doomed to compete, without anyone else to share the responsibility, in an activity in which they can never know whether they have succeeded or even what succeeding might mean.

This makes the world I live in look quite grim, and I don’t know that I buy the descriptive claim. Are professors any more unhappy than doctors, accountants, GM workers, or real lawyers? I doubt it – although Livingston’s recent post on affirmative action sheds some light on issues he finds alienating. The payoff from his claim is provocative: he offers a novel defense of the tenure system, based on relieving of the crisis caused by competing against yourself in a world without measures:

Tenure, for example, which would no longer be seen as a form of protectionism for incompetent academics, but a necessary countermeasure to prevent the suffering from becoming still more pronounced.

Ok. But if that is the goal tenure is serving, couldn’t we accomplish it more efficiently by, say, giving professors grades? Does it really matter that such grades will have no connection to objective measures? (We all went to law school, and are used to such things.) As so often happens, I’m reminded of a terrific Simpson’s episode, involving a teacher’s strike. I strongly empathize with Lisa’s response, expressed in a conversation with Marge:

Lisa: Grade me…look at me…evaluate and rank me! Oh, I’m good, good, good, and oh so smart! Grade me!

[Marge scribbles an A on a piece of paper]

[Lisa walks off, muttering crazily and sighing]