Monthly Archive: September 2006


When the Media Quotes Bloggers

quotation-mark.jpgKenneth Anderson asks: “Should a journalist or scholar check with a blogger before quoting a post . . . to see if that is what he or she would say in a considered way, either what he or she would say in a published article or what he or she would say to a journalist in an actual interview?”

Kenneth expresses some concerns with journalists quoting bloggers without contacting them: “[B]log postings generally tend to be much more strongly put than people – I include myself certainly – would say in an actual live or phone interview with a journalist. Presumably this is one reason why they can be an attractive source of material for journalists, besides the ease of searching them out rather than telephoning.”

I have had parts of my blog posts quoted in mainstream media articles before without having been contacted. Sometimes I think that it might be better for the reporter to at least call me and let me know what he or she plans to quote and allow me to elaborate or at least discuss the topic. But having been quoted many times by the media based on telephone interviews, I think I’d prefer my blog posts to be quoted. I’ve had a wide range of experiences being quoted based on interviews, and many a time my quote was more like a translation or approximation of what I said. Sometimes, I couldn’t even recognize the quote as having any relationship to anything I said. Reporters take great liberty with quotes. Sometimes this isn’t too bad, since the reporters might be able to edit my quote so I express my point in a more concise and punchy way. But other times, my quotes have appeared in an awkward way, with grammatical errors, as completely nonsensical, or even in a way that differs substantially from my actual position.

One of my favorite silly quotes attributed to me is: “Even though its anonymous, it’s still ominous.” Did I really say that? I can’t recall what article it appeared in, but it’s on a website that gathers quotable quotations from people. I have no idea why there’s a page for me on this website. I have no idea why it selected the particular quotes it did. The Internet sure is a mysterious place. Anyway, I certainly wouldn’t deliberately attempt to create a Johnny Cochran-like rhyme (“If it doesn’t fit, you must acquit”). Perhaps I said it, for many of my interviews with journalists last 15-30 minutes, which are then distilled down to just a phrase or snippet. The bottom line is that a quote from an interview is often not a very accurate reflection of what I actually said — and even if it is what I actually said, it often doesn’t reflect how I want my point to come across.

In contrast, every time I’ve been quoted in a blog post, at least the quote has been verbatim. Reporters don’t feel at liberty to edit the quote. And this is why it might be better to be quoted in a blog post. At the very least, these are my own words. Moreover, the fact that I might be quoted in a post helps remind me that every time I blog, I’m writing something accessible to the world. It can be easy to forget that when blogging, but I try to keep my “blogging censor” on full alert at all times (and I hope I succeed most of the time). Indeed, some of my best blogging achievements have been hitting the delete key.

There is one other benefit of being quoted in a blog post rather than a phone interview — I get a quote in a mainstream newspaper without having to do the interview. Up to 30 minutes of time saved. Something for nothing . . . and nothing’s wrong with that.


Creative Crime On Campus


I just discovered a humorous quirk in the way that crime is reported. As I flipped through Drexel’s federally mandated disclosure of on-campus crime, I discovered that one category is “Attempted Robbery Strong Arm (hands, feet, etc.)” This led me to wonder whether Drexel is alone in conjuring images of a strong-arm, foot-point robbery. It appears, though, that this is standard terminology. Looking at a crime coding handbook for universities, I confirmed that Drexel had simply appropriated uniform crime reporting terminology.

I’m pleased that Drexel conforms to UCR taxonomies, but I remain flummoxed by the notion of strong arm robbery by foot. Do these thieves wear toe shoes?

It all reminds me a bit of “foot powder for the head.”


Note To Budding Scholars: Missteps Can Be Corrected

One of my first anxieties as a new professor was the concern that in my first scholarly venture, I’d make a mistake. I worried that I might take a position I later discovered to be indefensible or just plain wrong. This fear is acute for law profs who enter the academy with only a JD. Unlike folks who spend several years gaining deep subject-area knowledge (typically through a PhD program), and practice writing by preparing papers for class, those of us who teach with only a JD typically learn the art of scholarship publicly: in most cases, our first piece of serious research is published, open for all to see. That’s significant exposure for a person still in his or her formative stage of work.

So I was pleased to see Dan Kahan’s new paper on SSRN open with a semi-recantation of his decade-old article, What Do Alternative Sanctions Mean, from the University of Chicago Law Review. Of course Kahan nuances the matter (for example, he argues that he was wrong – but not for the reasons articulated by any of his critics). And by placing the claim up front, indeed as the article’s hook, his recantation appropriates the status of his first piece, reconfiripositioning this new article as a further nuanced analysis about shame sanctions. (Which is to say, he has displaced the potential shame of recantation with continued renewed ownership of the topic, albeit on slightly altered terms.)

But the relevant aspect of Kahan’s new paper is that it should remind junior scholars that errors, misjudgments, or simple changes of heart are OK. We all grow as people, and scholars, and if a decade of reflection sheds new perspectives on an issue, there’s no harm. Of course, we should all be so lucky to have our initial effort as widely read and discussed as Kahan’s. For most of us, early misstepss will be forgotten before the reprints even arrive. And our efforts to recant will be met with similar uninterest. But if that first amazing piece strikes gold – and turns out to be wronger than white clothes after Labor Day – just remember: you can always reconsider.


Law Student Elections: YouTube Special

About this time of year, law students run for election to student leadership offices. I’ve seen some really strange, and sometimes funny, election materials, but this video takes the cake:

I’ll take nominations for most arresting/funny/bizarre student election campaign slogan in the comment thread.


The Law and Economics of Smoking Bans

smoking.jpgThe big news out of Philly recently is Mayor Street’s decision to begin enforcing the City’s smoking ban. But, as commentators have observed, the City isn’t putting real resources into enforcement: only two officers will be assigned to the smoking beat, and will not work after business hours. That’s City time, not Bar time. Given the miniscule probability of being caught, the $25 fine seems ludicrously low.

Nevertheless, the City is confident that the ban will have bite. Although anecdotes from Kentucky suggest otherwise, the City argues that:

“The majority of the people will comply,” [interim Health Commissioner Carmen Paris] said. “The majority of the people will put that cigarette away. Those that don’t, then the establishment owner is required to call us and file the complaint.”

Self-policing by bar owners and smokers themselves should be effective, said Joe Minott, the executive director of the Clean Air Council.

“People do it because it’s required by law,” he said. “I suspect that after a settling-in period there’s not going to be a lot of problems.”

The law and economics of the enforcement of regulatory offenses interests me. Traditional analysis would suggest that self-enforcement is unlikely (or discounts the role of social pressure). But I suspect that Philly is onto something. Because of the long, public, debate about the utility of smoking bans, most citizens know about the issue, and probably feel invested in the compromise that finally emerged from the City Council. Unlike, say, a normal low-enforcement regulation (e.g., an EPA rule, or the rule against home poker games), the smoking ban will be pushed along by significant social norms of compliance. Dirty looks, over-loud coughs, muttered comments, and (ultimately) illegal self-help will clear the air.

Theorists of deterrence might consider whether the success of low-enforcement/high-compliance rules provides a model to rescue low compliance rules where social-enforcement is possible (like anti-drug and anti-graffiti criminal codes, and plagarism in school). Maybe we need to sunset the existing criminal code every ten years, and force legislators to re-authorize the law through public debate. That debate, in turn, will increase public buy-in and lower deterrence costs. This analysis (not incidentally) explains the need to publish federal regulations, but also suggests that mere publication isn’t enough: real, political, debate is necessary to ensure that social sanctions help legal rules penetrate and affect their intended audiences.


Anthony Trollope on Lawyer TV Shows

trollope.jpgOne of the unhappy side effects of a legal education is that it destroys your ability to enjoy lawyer movies and attorney TV shows. After I acquired the vast expertise of a single semester of law school, my wife informed me that I had become absolutely insufferable as a partner for watching “Law & Order” because I kept saying things like “That isn’t really how it works…” And “Law & Order” is actually a pretty accurate lawyer show. (Of course, watching ER with my wife is a pain.) Well, it would seem that legal nitpicking of the portrayal of the law in fiction is not new. I recently found the following complaint written by Anthony Trollope in his novel Phineas Finn (1869):

The poor fictionist very frequently finds himself to have been wrong in his description of things in general, and is told so, roughly by the critics, and tenderly by the friends of his bosom. He is moved to tell of things of which he omits to learn the nature before he tells them – as should be done by a strictly honest fictionist. . . . And then those terrible meshes of the Law! How is a fictionist, in these excited days, to create the needed biting interest without legal difficulties; and how again is he to steer his little bark clear of so many rocks, — when the rocks and the shoals have been purposefully arranged to make the taking of a pilot on board necessary? As to those law meshes, a benevolent pilot will, indeed, now and again give a poor fictionist a helping hand, — not used, however, generally, with much discretion.

McCoy.jpgIt would seem that litigation (notice that there are no TV shows – or Victorian novels – about transactional lawyers) has been “the biting interest” of fiction in “excited days” for some time, and the springes of the law (to use Holmes’ wonderful phrase) have been trapping unwary writers for many years.

Of course it could be worse. I once watched “24” with a friend of mine who works for the CIA. He would constantly be saying things like, “I can’t tell you guys any more, but this part is SO NOT realistic.” In his heart of hearts, however, I know that he wants to be Jack Bower. (He claims to be an accountant for the CIA, but my wife and I are convinced that he is actually a free-lance assassin on the “Company’s” payroll.)

Of course it goes without saying that no matter how often lawyers pick at “Law & Order’s” nits, they all want to be Jack McCoy.


Hierarchies of Legal Scholarship

J.B. Ruhl recently came out with his hierarchy of legal scholarship, ranking types of articles from 0 to 10. His hierarchy has generated a ton of controversy (see here, here, and here). Here’s his ranking:

0 – Blog posts

1 – Publication of what are essentially blog posts with footnotes

2 – Doctrinal review of the state of the law

3 – Doctrinal study of interesting questions of law

4 – Doctrinal synthesis of developments in law

5 – Normative policy analysis of law

6 – Normative policy analysis of law with substantial reform proposals

7 – Legal theory

8 – “Law and” interdisciplinary studies

9 – Empirical study of legal institutions

10 – Empirical study of law’s impact on society

Now, in playful mockery of Ruhl’s hierarchy, Eric Muller has created another hierarchy of legal scholarship. A small taste:

2 – Work in my field that totally ought to cite my work but fails to do so

3 – First novels by professors at Yale Law School

4 – Student-written work by me

5 – Work that cites my work

Hat tip: Above the Law


Liberation blogology

Earlier this month, lawprofblogger Doug Berman wrote a post for published an article in the National Law Journal. In it, he argues that blogs set lawyers and law professor free by allowing them to avoid overwrought legalisms in their writing. He argues (warning — block quote):

Many legal documents and most traditional law review articles can be ponderous, with assertions over-wrought, arguments over-made, principles over-cited and everything over-written. The blog medium fosters and rewards succinct expression. For legal writers and legal readers, it is liberating and refreshing to have thought-provoking ideas about the law expressed in only a few paragraphs or even a few sentences.

I will more fully address the substance of Professor Berman’s argument in the 172 painfully footnoted pages of my forthcoming law review article, Bargaining in the Shadow of the Blogosphere, 15 J. L. & Ponder’s Assert’ns. 101 (forthcoming 2008). For now, let me just throw out a few half-baked ideas on why Professor Berman’s argument, while interesting, may be overstated.

It is absolutely true that there are stuffy lawyers who write with too much legal-ese, and who could use a good editor. It is also absolutely true that there are many samples of bad legal writing which one could locate with a minimum of effort. (No, we won’t name any names. We’re simply going to take judicial notice of this one.)

Read More


Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M’Naughten

In a recent post about mental illness and the death penalty, I attempted to raise the question of how some abortion opponents justify their support for executing people with mental illness. In particular, I wondered how such an inidividual would deal with some future research which allows us to predict whether a fetus will have an exceptionally high disposition to violence – and thus to murder. For the sake of this hypothetical, at least, imagine that this research actually tells us that a person with X genetic makeup will try to kill someone later in life. Could one oppose abortion of this fetus, while simultaneously approving execution of that person, in adulthood, when his overwhelming disposition ripens into an actual murder?

Rick Garnett offered comments which helped me recognize that my own language was imprecise. I asked whether such new research might logically provide a moral justification for “pre-emptive abortion” of a likely future killer. I now see that this sounds like I was making a utilitarian argument, which was not my intent. Rather, I meant to suggest a couple of things. First, we know that many people on death row have mental health issues – so many that one can now infer, and future research could conceivably establish, that many people on death row are there as a but-for result of their mental problems. Second, if one supports execution of individuals who would not be there but-for the mental problems, one essentially supports execution of people where free-will is not the sole, or even determinative, explanation for their acts. That is, one supports execution of individuals who are, in at least some sense of the word, innocents. Third, this argument suggests that the distinction between the “inncoent” fetus and the “guilty” murderer is far less clear cut. And it suggests that if the information we might need to know about a person to determine whether they will kill can be obtained pre-birth, any moral justification for execution at a later date might have at least some force at the earlier date as well. I am not claiming that one actually should abort for these reasons. I’m merely questioning how one can call the killing of the adult any more or less “retributive” than the abortion, if the factor that created culpability – say, a mental illness – existed both before birth and after. The only thing that changed was the actual fact of a killing, but a killing that was essentially beyond the offender’s free will.

The obvious retort to all of this is that the criminal law does not allow execution – or even conviction – of an individual whose crime is caused by a mental disease or defect. The problem is that the dominant test for insanity today, the M’Naughten rule, provides a defense only when a person is not aware of the nature and quality of his act (e.g., he thought he was cutting a melon, but it was really a head), or, if aware, did not know the act was wrong. Notably missing from this standard (but present in the old ALI version of the insanity defense, which became far less common after the assassination attempt on Ronald Reagan) is a defense for individuals who cannot control their acts. Yet if support for the death penalty among abortion opponents hinges, as I suspect it must, on the idea of free will – the notion that the offender has transcended his early innocence and now makes decisions independently, and thus fully culpably – must not that abortion opponent exclude from execution any person who cannot control his act?


The Digital Person: Now in Paperback

digital-person-1.jpgI’m pleased to announce that my book, The Digital Person: Technology and Privacy in the Information Age, is now out in paperback and has a much more affordable price. From the cover blurb:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. For each individual, these databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases—which Daniel J. Solove calls “digital dossiers”—has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

The Digital Person sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Links to reviews of the book are at The Digital Person website.