Category: Articles and Books


And Now a Word from the Oracle of Delphi

Temple at DelphiThanks to the Co-Op crew for inviting me here to guest-blog — I’ve really enjoyed it. I figured I would, but I did discover one thing I was not expecting: my blog posts are loooong. Longer than I would read if I wasn’t writing them myself (which is similar to what I used to tell the students in my Saturday morning Internet Law class back when I was an adjunct: I wouldn’t have signed up for this class when I was in law school!). So thanks to those who read and commented as well.

Having just put up a long post, I don’t want to do another, but I did have one more in me. So instead of writing it out, I’m just going to summarize cryptically: Read the excellent discussion of complexity and the law at Jurisdynamics. Read the fascinating article at Vanity Fair on the confusion at NORAD’s northeast regional headquarters on September 11. Contemplate Roberta Wohlstetter’s classic, Pearl Harbor: Warning and Decision, and Bob Ellickson’s Order Without Law. Think about whether the formation and enforcement of informal norms in a community displays similar properties and behaviors as complex systems, and how the salience of certain events in that community depends more on the conceptual framework the members operate under, than on the content of the formal law. Know thyself. Goo goo g’joob.


Can Spam and Spyware Ever Be Good?

Over at the Conglomerate, Professor Eric Goldman’s paper, A Coasean Analysis of Marketing, is being workshopped in the Conglomerate’s Second Annual Junior Scholars Workshop. Professors Peter Huang and Frank Pasquale (previously a guest blogger here at Concurring Opinions) are providing commentary.

Eric Goldman was teaching at Marquette Law School. This fall, he will be moving to Santa Clara Law School. He has a very informative blog about technology and marketing law issues.

I’ve read Eric’s paper, and it is quite interesting and provocative. Eric attempts to point out the brighter side to junk mail, spam, adware, and other marketing technologies that most of us detest. Is there such a thing as a good spam? I have my doubts, but Eric presents a thoughtful argument why we shouldn’t view spam and other marketing technologies as totally evil. He argues that we ought to be very careful in how we regulate marketing, and he proposes new approaches toward addressing the problems unwanted marketing create. Here’s the abstract:

Consumers claim to hate marketing—mostly, because they get too much unwanted marketing. In response, regulators develop medium-by-medium marketing suppression regulations. Unfortunately, these ad hoc solutions do little to satisfy consumers, and dynamic technologies and business practices quickly render them moot. Instead of continuing this cycle, there would be some benefit to developing a cross-media marketing regulatory scheme. However, any holistic solution must be predicated on a clear rationale for regulating marketing. The most common justification is that marketing imposes a negative externality on consumers, but this argument ignores the private and social welfare created by marketing and can lead to cost overinternalization and marketing undersupply. The Coase Theorem also suggests that social welfare improves by reducing the costs of matching marketers with interested consumers. To achieve this, consumers need a low cost but accurate mechanism to manifest their preferences. This Article shows that typical regulatory and marketplace solutions do not provide effective mechanisms. Instead, marketer-consumer matchmaking will improve from technology that will automatically infer consumer preferences and use these inferences to filter incoming marketing and seek out wanted content. This technology does not yet exist, but it is being rapidly developed. However, regulation of surreptitious monitoring devices (like adware and spyware) may inadvertently block the development of this socially-beneficial technology. As a result, current regulatory overreactions to developing technology may counterproductively foreclose social welfare improvements.

The Conglomerate welcomes your comments on Eric’s paper: “We invite all readers to comment on Eric’s paper in the commennts section of this post.” Please comment over at the Conglomerate post.


18th Century Venture Capitalists

dismal.jpgAs I posted earlier, of late I have been reading Virginia history. I have one title to suggest: Charles Royster, The Fabulous History of the Dismal Swamp Company. It is an tremendously detailed history of one of the great 18th century land speculations, the attempt to drain and sell the Great Dismal Swamp on the Virginia-North Carolina border. George Washington was one of the movers and shakers in the company, but other characters in the story include names like George Wythe, Richard Henry Lee, Patrick Henry, and a host of other luminaries from the American Revolution, as well as lesser known names like Christopher Gist, a Virginia merchant who helped to found Lloyd’s maritime insurance business.

Royster is a good writer and — for me at least — the narrative works nicely. The research represented by the book is awe-inspiring and the result is an enormous wealth of detail about everything from family politics (everyone who was anyone is colonial Virginia was related to everyone else) to imperial politics. At the center of the story, however, is what amounts to a venture capital deal.

To me one of the most fascinating parts of the story is the role that the events of the American Revolution play in it. The Dismal Swamp Company was founded as the Seven Years War (aka the French and Indian War) was coming to an end and its story twists through the years leading up to independence. Furthermore, given the vast scale of the project it inevitably became entangled in colonial and ultimately metropolitan politics. Hence, the events of the Revolution play out in the story, but in a new angle. They are not at center stage. Rather, the Stamp Act and Patrick Henry’s fiery speeches in the House of Burgesses are secondary characters who come on and off stage only as they impact the unfolding drama of the deal.

If one sees history in legal terms, the plots are often structured around public law stories in general and constitutional ones in particular. Royster’s book is, in a sense, the private law story of the American Revolution. He is not a legal historian, but the law is hardly a bit player in his story. The drama, however, centers less around constitutional arguments about rights and representation than around bills of exchange, maritime insurance contracts, mortgages, debts, collection actions, wrangles over title to land, corporate governance, and the like, all of which propel the characters in the story via various complicated paths to ruin or fortune.

Definitely worth reading.


“An Inconvenient Truth” (and its inauspicious start)

While at the beach this weekend, I read Al Gore’s new book “An Inconvenient Truth.” It’s sobering and effective. I recommend it highly.

Be advised, though, that the book is not just about global warming. It’s also very much about Al Gore. He intersperses his scientific material, diagrams, photographs, and big-font explanations with family snapshots and small-font autobiography. Coming from a lifelong politician, this material really can be seen as nothing other than campaign literature.

I myself didn’t mind the personal stuff too much, because I admire much of what Gore has done with his life, and I learned some things about his family that I didn’t know. But I do think it would have been smarter for him to leave this material out; including it just makes the job of those who wish to discredit the science he’s advancing that much easier.

I’ll confess, though, to one moment of eye-rolling. And it came early — in the very first column on the very first page. Gore alludes to his son’s near-fatal accident in 1989, and then says this: “[D]uring that traumatic period … I made at least two enduring changes. I vowed always to put my family first, and I also vowed to make the climate crisis the top priority of my professional life.”

I recognize that “putting one’s family first” can mean lots of different things to lots of different families. But I’ll go out on a limb and say that one thing “putting your family first” just can’t mean is being President of the United States.

This opening passage of the book rang false to me — a politician’s platitude. Not a good start for a book about truth.


Stealing Democracy

stealing-democracy1.jpgMy colleague, Professor Spencer Overton at GW Law School, has just published a terrific new book, Stealing Democracy: The New Politics of Voter Suppression. From the book’s website, here’s a listing of the chapters and a brief summary of each:

INTRODUCTION: THE MATRIX — Politicians use an invisible matrix of election rules, practices, and procedures to shape the electorate and determine political outcomes.

CHAPTER ONE: HOW TO RIG ELECTIONS — Self-serving politicians like Texas Congressman Tom DeLay orchestrate voting district maps to enhance their political power.

CHAPTER TWO: PATCHWORK DEMOCRACY — The United States features over 3,000 different sets of voting rules, and thus your “right to vote” depends on where you live. Voters in favored districts cast ballots quickly while other voters navigate 3-hour lines and antiquated punch card machines.

CHAPTER THREE: DOES RACE STILL MATTER? — Politicians still use race to predict voting behavior and erect barriers that exclude voters of color.

CHAPTER FOUR: NO BACKSLIDING — The Voting Rights Act’s “preclearance provisions” are still needed.

CHAPTER FIVE: LA SOCIEDAD ABIERTA — The bilingual ballot provisions of the Voting Rights Act remain critical.

CHAPTER SIX: FRAUD OR SUPPRESSION? — Those who would condition the right to vote on the showing of a photo ID fail to establish that their proposal will exclude even one fraudulent voter for every 1000 legitimate voters excluded.

CONCLUSION: THE CHOICE — Average citizens explain how and why they invest time working through Common Cause, National Council of La Raza, The League of Women Voters, and the NAACP to change democracy.


Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art


New Casebook (Privacy, Information, and Technology)

Spinoff Cover 2e.jpgApologies for the self-promotion, but in time for this fall semester, Paul Schwartz, Marc Rotenberg, and I will be publishing a short paperback casebook of about 300 pages entitled PRIVACY, INFORMATION, AND TECHNOLOGY (Aspen Publishers, forthcoming mid-July 2006), ISBN: 0735562548.

This book is intended to be an inexpensive volume that adapts the cyberspace and technology materials from our full-length casebook, INFORMATION PRIVACY LAW (Aspen Publishers, 2d ed. 2006). The full-length casebook is about 1000 pages; the shorter paperback book is a more streamlined volume of about 300 pages, focusing exclusively on cyberspace, databases, and technology. Aspen informs me that this shorter paperback adaptation will probably sell at a price between $30 and $35.

The book might be useful as a supplement for cyberlaw or information law courses for instructors who want in-depth coverage of information privacy issues for between 2 to 5 weeks.

More information about the book is here. If you’re interested in getting on the list to obtain a review copy of the book (available in mid-July), please send an email to Daniel Eckroad.

The table of contents is available here. A summary of the book’s contents is after the fold.

Read More


Another Data Point in the Case for Student-Run Law Reviews

Check out the thorough Report of the Investigative Committee of the Standing Committee on Research Misconduct at the University of Colorado at Boulder concerning Allegations of Academic Misconduct against Professor Ward Churchill. Arguably, the allegations against Churchill provide some support for student run law reviews. Such journals, when well-run, provide checks against just the kinds of misconduct which Churchill has apparently engaged in. Let’s go through the problems in order, and consider whether student edited law journals (“SEJ”) or peer-edited journals (“PEJ”) would have been better positioned to avoid them.[FN*] I assume that a PEJ normally requires authors to check their own citations, relying on something like the honor system and reputational sanctions.

  • A SEJ would have surely questioned the eq. seq.’ing of the General Allotment Act of 1887, while PEJ would let it pass. I’m routinely taken to task by student editors for failure to find pin cites for statutory citations.
  • Neither a SEJ nor a PEJ would have have likely caught the ghost-writing of the support sources, although if the peer reviewer knew of the connection, it is at least possible that questions would have been raised. That is, PEJ’s are better at catching self-citation and its variants.
  • I have to think that a good cite-checker would have caught the problems with respect to the Indian Arts and Crafts Act contained in Allegation “B”. I would have thought a good PEJ would have too.
  • On the other hand, no student editor would have been able to do much about Allegations “C” and “D”, while peer review might under some circumstances have been able to catch the problem. SEJ’s simply aren’t equipped for this level of nuance.
  • A well-run pre-emption check might have caught the plagiarism problem in Allegation “D” and “f”: I seriously doubt that any PEJ process would have.

The point is not, of course, that peer review is terrible and student editing is fantastic. The traditional critique is trenchant. But, student review, when performed by a motivated board, is designed largely to deal with the problems of misattribution of sources, misleading summaries of the relevant law, and to find ways – through very precise citation – to permit later replication of research. It is part of the conceit of law professors that their scholarship, because it is relied upon by courts at least once in a while, needs to be invulnerable to the very close look that Churchill’s work has just received. Whether this reality bears any relationship to practice is an open question. I’d bet that if you compared the average law review article to the average social science peer edited journal, the error-per-citation rate would be lower. [FN**] But perhaps I’ve simply drunk too much of the law review kool-aid.[FN***]

FN* Granted, most of the allegations against Churchill occurred when he published outside of a PEJ or in a PEJ with unknown procedures.

FN** The number of errors would be way higher. The reason is obvious.

FN*** And all this despite having failed, eight years ago this week, to beat the odds in the Harvard Law Review write-on competition.


The Bar Exam as a Theory of Law

bar-exam2a.jpgJust in time for Bar Exam season, I have posted my short book review of the Bar Exam: The Multistate Bar Exam as a Theory of Law, 104 Michigan L. Rev. 1403 (2006). From the abstract:

What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Professor Solove writes: “Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work has barely received scholarly attention. . . . It is time to rectify this situation and put the Bar Exam in its place as the great work of jurisprudence that it is.”

This book review actually originated as a blog post nearly a year ago, and I was delighted to have the opportunity to transform it into a printed published piece. I’ve reworked the text a bit, and expanded it somewhat, but I did my best to keep it short and to the point. It is 4 pages long, so it remains a quick easy read — and hopefully, a fun one too. At the very least, it is a lot more fun than studying for the Bar Exam! You can download it here.

Related Posts:

1. Solove, Abolish the Bar Exam (Dec. 2005)