Monthly Archive: November 2007


Introducing Guest Blogger Jeffrey Lipshaw

lipshaw-jeffrey.jpgI’m very pleased to announce that Professor Jeffrey Lipshaw will be joining us as a guest blogger for the next month.

Jeff is an Associate Professor at Suffolk University Law School in Boston, where he teaches courses in the business and financial services concentration. He practiced for twenty-six years before entering legal academia, as an associate and partner in a large Detroit-based law firm, as the general counsel of the automotive division of AlliedSignal, and as the senior vice president and general counsel of Great Lakes Chemical Corporation. His advice to others seeking to breach the citadel walls of academia late in a legal career are capsuled in Memo to Lawyers: How Not to Retire and Teach, an article that prompted the dean of a “top five” law school to send an e-mail stating how much he enjoyed it, but also hoping that Jeff was also doing “serious work.”

Jeff is a co-editor of Legal Profession Blog. He claims to operate “at the intersection of venture capital and Kantian philosophy.” His recent publications include:

* Freedom, Compulsion, Compliance, and Mystery: Reflections on the Duty Not to Enforce a Promise, 3 Law, Culture and the Humanities 82 (2007)

* Law as Rationalization: Getting Beyond Reason to Business Ethics, 37 U. Tol. L. Rev. 959 (2006)

Larson on Legacy Preferences as Titles of Nobility

ballcrown320.jpgCarlton Larson’s article on the “Unconstitutionality of Legacy Preferences in Public School Admissions” is provocative, persuasive, and beautifully written. I read its seamless synthesis of legal history and constitutional advocacy at one sitting, and I think anyone interested in egalitarian thought would do well to consult it. As its precis states,

[The Article] sets forth a framework for building a modern jurisprudence under the Nobility Clauses and concludes that legacy preferences are blatantly inconsistent with the Constitution’s prohibition on hereditary privilege. Indeed, the closest analogues to such preferences in American law are the notorious “grandfather clauses” of the Jim Crow South, under which access to the ballot was predicated upon the status of one’s ancestors. The Article considers a variety of counterarguments supporting the practice of legacy preferences and concludes that none of them are sufficient to surmount the Nobility Clauses’ prohibition of hereditary privilege.

Larson’s piece is also impeccably timed, as controversy over admissions to elite universities heats up. Justice Talking featured a series of speakers on college admissions on last week’s podcast. As book after book reveals inequities in the system, apologists for privilege are mounting a counterattack. Larson’s article reminds us of what is at stake–no less than the egalitarian values at the core of the American Revolution’s rejection of British aristocracy.

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The Poetry of the Law

At Law Day dinners and law school commencements, judges and lawyers like to wax eloquent about the “poetry of the law.” I wonder, however, how many poems there are about specific legal rules. They do exist. As proof, I offer the following verse, which I discovered this morning, on the fellow servant rule:

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Debate: Voter ID: What’s at Stake?


PENNumbra‘s featured works of November are now available at

As Lyle Denniston wrote earlier this fall on, “[f]ew cases the [Supreme] Court might have agreed to hear w[ill] be likely to have as much real-world political impact as the newly granted case[] of Crawford v. Marion County Election Board . . . , involving an Indiana voting requirement law that is said to be among the most demanding in the nation.” (see Analysis: An Election Issue for an Election Year.) Before the Justices themselves have an opportunity to delve into the case, Professors Bradley A. Smith, of Capital University Law School, and Edward B. Foley, of The Ohio State University, debate the major legal, political, and philosophical

issues behind the controversial matter of voter ID in Voter ID: What’s at Stake?

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.


Corporate Law Gorilla Award 2007

450px-Gorilla_gorilla_gorilla2.jpgIn 2005, when I first announced the annual Corporate Law Gorilla Award, the idea died for lack of interest. I’m undaunted, and our audience has grown considerably in the last two years, which means that there is at least a chance that some of your new eyes may be interested in participating.

So here’s the contest: motivated by the famous gorilla-basketball experiment, I’d like to know “what unheralded tax-break/accounting technique, merger/breakup, stock/bond rise/fall/issuance, corporate announcement/silence, etc., will prove in the next several years to be the biggest missed business story” of 2007. The reader with the most plausible story will win fame, and, should her/his prediction prove accurate, possible immortality in a law review case comment footnote.

My guess: LBO-ready stakes taken by sovereign foreign funds in large U.S. financial companies. (Possible disqualification: covered by WSJ’s Berman two weeks ago. Okay, so readers are permitted to submit anything whose hype/real world impact ratio is <.5).


New Books About Law and Related Topics (Fall 2007)

Here is a list of new books on law and law-related topics published by some major academic presses in the fall of 2007.


book-god-gavel.jpgGod vs. the Gavel: Religion and the Rule of Law

Marci A. Hamilton

The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings

Gideon Boas

The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution

Francisco Forrest Martin

International Tax as International Law: An Analysis of the International Tax Regime

Reuven Avi-Yonah


book-yackle.jpgRegulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law

Larry Yackle

Broken Buildings, Busted Budgets: How to Fix America’s Trillion-Dollar Construction Industry

Barry B. LePatner

Unequal under Law: Race in the War on Drugs

Doris Marie Provine

book-privacy-at-risk.jpgPrivacy at Risk: The New Government Surveillance and the Fourth Amendment

Christopher Slobogin

The Complete Anti-Federalist

Herbert J. Storing

mass-torts.jpgMass Torts in a World of Settlement

Richard A. Nagareda

Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy.

Lynn Welchman

Rethinking Expertise

Harry Collins and Robert Evans


book-mackinnon.jpgAre Women Human?

Catharine A. MacKinnon

Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska

Stuart Banner

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Strahilevitz on Reputation Nation

strahilevitz1.jpgProfessor Lior Strahilevitz (U. Chicago Law School) has posted on SSRN his new article, Reputation Nation: Law in an Era of Ubiquitous Personal Information, forthcoming 102 Northwestern University Law Review (Oct. 2008). Whereas I explore the dark side to the Internet’s effects on reputation in my work, Lior focuses on the many benefits in his scholarship. For an earlier example of Lior’s thoughtful work on the topic, see ‘How’s My Driving?’ for Everyone (and Everything?), 81 New York University Law Review 1699 (2006). Lior’s work is always fascinating and worth reading, and his new piece is no different.

From the abstract:

Modern technology has made two sorts of previously private information widely available in the past decade: Information about individual’s past actions and activities, often contained in government files, consumer credit histories, and advertising profiles; and Feedback information about individual’s reputations and preferences, often contained in social networking sites’ pages, eBay feedback scores or Slashdot karma scores. In the coming decade, wearable computing devices and advances in network technologies have the potential to transform completely the way that strangers interact with each other and consumers interact with service providers. This paper is the first to ask systematically how the law should respond to the newly widespread availability of this information.

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Yale Law School Conference on Online Reputation

yale-reputation.jpgOn December 8, 2007, Yale Law School’s Information Society Project will be holding a conference about online reputation called Reputation Economies in Cyberspace. I’ll be participating in the symposium and will be talking about my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. Other participants include Alessandro Acquisti, Michel Bauwens, Danielle Citron, John Clippinger, William McGeveran, Urs Gasser, Rishab A. Ghosh, Ashish Goel, Eric Goldman, Auren Hoffman, Darko Kirovski, Mari Kuraishi, Hassan Masum, Beth Noveck, Vipul Ved Prakash, Bob Sutor, Mozelle Thompson, Rebecca Tushnet, and Jonathan Zittrain.

From the symposium press release:

How do you know whom to trust when you shop online or search for information on the Internet? How do businesses, individuals, and information sources manage their online reputations?

Leading information experts, scholars, technologists, activists, social entrepreneurs, and industry representatives will consider these questions at the “Symposium on Reputation Economies in Cyberspace” taking place Saturday, December 8, at Yale Law School, 127 Wall Street, New Haven. The symposium, open to the public, is hosted by the Information Society Project (ISP) at Yale Law School.

“A new generation of web tools based on collaborative participation and information sharing is becoming mainstream,” said ISP Executive Director and Lecturer in Law Eddan Katz. “This symposium will provide an excellent opportunity to discuss publicly, for the first time, the legal implications of these tools.”

“Reputation economies in cyberspace have a broad effect on the ways in which we study, conduct business, shop, communicate, create, or even procreate,” said Shay David, Microsoft Visiting Fellow at the ISP. “By bringing together leading scholars from industry and academia, this interdisciplinary landmark event will further our understanding of reputation economies’ impact on technology and society.”

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Is Posting a YouTube Video on a Blog a Copyright Violation?

youtube1.jpgWith YouTube, bloggers can embed videos on their blog, so that it appears as though the video is being played on the blog’s page. For an example, see this recent post by Dave Hoffman.

Over at the VC, Orin Kerr ponders the question of whether using a YouTube video in one’s blog can be a copyright violation. Orin repeatedly warns us that copyright isn’t his area, but the question and Orin’s discussion of it are interesting:

Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file? Copyright is not my area, so maybe my legal analysis is way off. But my sense of the answer is “probably not.” The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, “One infringes contributorily by intentionally inducing or encouraging direct infringement.” Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.

The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I’m probably not liable. First, I don’t think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to and search for “cantaloupe island” and this clip is the first thing that pops up.

Given that, I don’t think my linking to the file is a “material” contribution to any infringement. Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don’t think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).

A while back, I posted a blog post that pondered some of the issues involved with copyright and the blogosphere. My post was entitled: What If Copyright Law Were Strongly Enforced in the Blogosphere?

I’m not so sure that copyright law is as sensible as Orin suggests. I’m not a copyright law expert either, but under some of the extreme decisions regarding copyright law coming out these days, I wonder whether Orin’s common-sense interpretation will prevail. Perfect 10 v. Google involved thumbnail images that pulled up in Google’s search results; the court found no infringement. The YouTube links display the actual video on a blog’s page — although the video is stored at YouTube, it looks exactly as if it were posted directly on the blog itself. This is more than just linking or just including a smaller thumbnail image in a search result. By embedding the YouTube video at the VC, Orin is creating the functional equivalent of the video existing at the VC.

All this said, I believe as a normative and policy matter that using YouTube videos in one’s blog shouldn’t be infringement. But legally, I think that the question is quite difficult. Orin notes that he found the law to be very murky in this area. I agree. When it comes to copyright, here’s my rule of thumb — if it’s reasonable and fair, then it’s probably not the law.


Michigan Law Review, Issue 106:2 (November 2007)


Michigan Law Review, Issue 106:2 (November 2007)

(Past issues are available on our website.)


Laura A. Rosenbury, Friends with Benefits?, 106 Mich. L. Rev. 189 (2007)

Ariel Porat, Offsetting Risks, 106 Mich. L. Rev. 243 (2007)


Nicole Stelle Garnett, Suburbs as Exit, Suburbs as Entrance, 106 Mich. L. Rev. 277 (2007)


Benjamin H. Diessel, Trolling for Trolls: The Pitfalls of the Emerging Market Competition Requirement for Permanent Injunctions in Patent Cases Post-eBay, 106 Mich. L. Rev. 305 (2007)

Peter Curtis Magic, Exclusion Confusion? A Defense of the Federal Circuit’s Specific Exclusion Jurisprudence, 106 Mich. L. Rev. 347 (2007)

Sarabeth A. Rayho, Divorcees Turn About in Their Graves as Ex-Spouses Cash In: Codified Constructive Trusts Ensure an Equitable Result Regarding ERISA-Governed Employee Benefit Plans, 106 Mich. L. Rev. 373 (2007)