Category: General Law


Schwarzenegger, Entertainment Merchants Association, and Irony

First, thanks so much to Danielle and the other authors at Concurring Opinions for taking me aboard for a while!  Let’s get right down to it: I wanted to talk about Schwarzenegger v. EMA before the month was out, given that oral argument was on November 2.  Oral argument always goes in twisty directions, but the court seemed to me to be just barely grazing two huge issues that go to the realities of the video game industry — first, how content for games is produced, and second, how games are now distributed.  More after the leap.

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Introducing Guest Blogger Joseph Blocher

I am delighted to introduce Professor Joseph Blocher who will be guest blogging with us this month.  Professor Blocher is an assistant professor at Duke Law School, where he teaches Constitutional Law and Capital Punishment. His primary scholarly interests include the First Amendment, the Second Amendment, and state constitutional law. Prior to joining the Duke faculty, Joseph received his J.D. from Yale Law School, clerked for Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit. He also practiced in the appellate group of O’Melveny & Myers.

Professor Blocher’s recent publications include:

Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev 375 (2009)

Reputation as Property in Virtual Economies, 119 Yale L.J. Pocket Part 120 (2009)

Schrödinger’s Cross: The Quantum Mechanics of the Establishment Clause, 96 Va. L. Rev. In Brief 51 (2010)

Government Property and Government Speech, 52 Wm. & Mary L. Rev. __ (forthcoming 2011)

Government Viewpoint and Government Speech, 52 B.C. L. Rev. __ (forthcoming 2011)

Reverse Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. __ (forthcoming 2011)

He is currently working on papers addressing the influence of state constitutional law on federal constitutional doctrine, the relationship between commercial speech doctrine and the rights of corporate speakers, and the Second Amendment right not to bear arms in self-defense.

The Program’s Progress

I’ve done a series of posts at the Health Care Blog on the unexpected consequences of data analysis in clinical settings. Not enough policymakers have recognized how pervasively predictive analytics can utilize data from one setting in another, unexpected one. As Scott Peppet argues, once you’ve “quantified yourself,” it may not be easy to opt out of invasive uses of your digital doppelganger. We all too often have “delusions of control” about technology once it is introduced. But sooner or later, many key technologies end up disciplining us.

Situating these controversies in a broader analysis of social trends, Ira Basen’s article in the weekend’s Toronto Globe and Mail is an excellent survey of the many ways that we end up “programming our lives away:”*
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Georgetown Law Journal, Issue 99.1 (November 2010)



The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona)

Barry Friedman

Litigation Finance: A Market Solution to a Procedural Problem

Jonathan T. Molot

The Indeterminacy of Iqbal

David L. Noll


“Choosing (and Recusing) Our State Court Justices Wisely”: Keynote Remarks by Justice O’Connor

Honorable Sandra Day O’Connor

Remarks by Justice Souter

Honorable David Souter


Showdown in the Rose Garden: Congressional Contempt, Executive Privilege, and the Role of the Courts

Timothy T. Mastrogiacomo

Libel Tourism: Protecting Authors and Preserving Comity

Daniel C. Taylor

Shop ’til You Drop: Implementing Federal Rules of Patent Litigation Procedure To Wear Out Forum Shopping Patent Plaintiffs

Megan Woodhouse


The Supreme Court on School Interrogations and Parental (Dis)empowerment

The Supreme Court has in the past several weeks granted certiorari in two cases involving the rights of juveniles in police interrogations in the school setting.  In Greene v. Camreta, the Ninth Circuit Court of Appeals ruled that the interrogation of a juvenile by police authorities in the school setting in the absence of a warrant, court order, exigent circumstances, or parental consent, was an unconstitutional seizure under the Fourth Amendment of the United States Constitution.  In the Matter of J.D.B., the Supreme Court of North Carolina held that a 13 year old burglary suspect who was interrogated by police officials in his school without parental notification and consent, was not in custody, and thus he was not entitled to have Miranda warnings read to him.   By agreeing to hear both J.D.B. and Greene in this term, the Supreme Court is undoubtedly seeking to clarify the legal standards surrounding the increasing law enforcement presence in public schools.   However, on a broader level, the Court is also entering into the societal discussion regarding the role of the public school in American democracy.  As it is increasingly accepted that the school is becoming the central societal institution, the lack of parental notification for the interrogations in Greene and Camreta is of particular concern.  The marginalization of parental involvement in such issues of morality and law may stem from a growing suspicion regarding the rearing abilities of parents.  If the Supreme Court does not elevate the right of parental involvement in school interrogations to Constitutional concern, then it will be throwing judicial weight to society’s growing cynicism toward the ability of parents, especially in challenging urban contexts, to manifest parental responsibility.

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All That is Liquid Freezes in a Panic

Argue against a complex financial practice, and you’ll hear it sooner or later: the liquidity trump card. Promoters of virtually every form of securitization, leverage, collateralized debt obligations, credit default swaps, swaptions, you name it—will insist that, if their activity is regulated or limited, the markets will lose liquidity. For example, as John Cassidy quotes John Mack, ‘subprime-mortgage bonds . . . “give[] tremendous liquidity to the markets.'” Another private equity executive tells Cassidy, ““Part of the value in a stock is the knowledge that you can sell it this afternoon. Banks provide liquidity.’”

Having authored the perceptive book How Markets Fail, Cassidy looks behind the liquidity talisman and finds it tends to melt into cliche:

“Liquidity” refers to how easy or difficult it is to buy and sell. A share of stock in a company on the Nasdaq is a very liquid asset: using a discount brokerage such as Fidelity, you can sell it in seconds for less than ten dollars. A chocolate factory is an illiquid asset: disposing of it is time-consuming and costly. The classic justification for market-making and other types of trading is that they endow the market with liquidity. . . .

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Opting Out Isn’t Socially Neutral Anymore

Various news outlets are reporting that Google “fans” in Germany have been egging the roughly 3% of houses whose inhabitants have chosen to opt out of Google’s Street View mapping feature.


Apparently the vandals left notes saying “Google is cool.”  So maybe this is just a “how dare you question anything Google?” protest.

But more likely it is something more. Jeff Jarvis on Buzz Machine recently labeled opting out of Street View the equivalent of “digital desecration,” saying that such “embarassing” “assaults” on the public “saddened and angered” him. It seems plausible that these vandals agree; “their” information has been taken from them by others asserting privacy interests, and they’re penalizing those who opt out for denying them what they view as theirs.

As Kashmir Hill put it on Forbes, “[i]t’s ironic that those who wanted more privacy through blurring their homes wound up getting less of it.”  Ironic, maybe. Surprising, not really. I’ve been making the argument here all month that opting out is not a privacy solution in many circumstances, because the act of opting out is itself visible to (and itself conveys information to) others. This is based on my forthcoming paper Unraveling Privacy; I’ve given examples from Mexico’s experiment with biometric retina recognition and from the quantified self / sensor movement. Egging is just a more crude version; in this example, it’s not that those who opted out are the “worst” members of a given pool (as in true unraveling scenarios) and are therefore discriminated against, but simply that others are pushing back against the right to opt out itself because it impedes unfettered access to all the information they want.

What’s next? If you won’t stream real-time data about your health (do you have the flu? other communicable diseases?) into your vicinity to warn others to walk on the other side of the street, will people heckle you? If you won’t display your criminal record prominently in digital form so that others can “see” (using their digital devices) whether you’re a sex offender or felon of some sort, will they assume you’re a criminal (unraveling) or harrass you for your “privacy” (like the German eggers)?  As I argue in Unraveling Privacy, the politics of privacy are getting more complicated; as some people increasingly share information about themselves, they will make attributions about those who do not — and potentially retaliate against them as well.


Does the Roberts Court Have a First Amendment Agenda?

Commentators sometimes study the Supreme Court’s certiorari grants over short periods to discern patterns that suggest an agenda. There are different types of agendas. Some Justices may have a substantive agenda to expand, contract, or change the approach to an area of constitutional doctrine or other federal law. A different agenda might be to clarify or further develop an area of law, but not have a particular direction in mind. That is, the goal simply may be clarity.

Sometimes an agenda may be the product of external events, such as the Court’s foray into limits on executive powers growing out of government actions to address terrorist threats after 9/11 (though, as Fred Schauer argues, the Court’s approach to case selection does not always mirror the nation’s governance priorities). At other times, it might occur internally. It would not be wild to suggest that a majority of the Rehnquist Court consciously wanted to alter the landscape of federalism by reviewing several Commerce Clause and state sovereignty cases over the span of just a few terms.

Recently, there is evidence that the Roberts Court has some sort of First Amendment agenda, but it’s not at all clear what that agenda is. Three times in the last two terms, the Supreme Court has granted certiorari to review a First Amendment case in which the government has argued for a new exception to the presumptive rule against government regulation of speech based on its content. Last term, the Court heard United States v. Stevens, 130 S. Ct. 1477 (2010), a challenge to a conviction under a federal law prohibiting the knowing creation, sale, or possession of a depiction of animal cruelty for commercial gain. This term, the Court has already heard argument in Snyder v. Phelps, a case arguing for an exception for emotionally harmful protests outside of funerals, and Schwarzenegger v. Entertainment Merchants Association, a case suggesting a possible exception for regulation of the sale of extremely violent video games to minors.

Though this is an oversimplification, it is generally still valid to describe basic First Amendment analysis as establishing a presumption against government regulation based on the content of the speech (content can include viewpoint, subject matter, and arguably other categories). Exceptions to the general presumption exist for government regulation of “fighting words,” obscenity, child pornography, and threats, as well as altered analytical frameworks for fraud in commercial speech, libel against public figures, and incitement to imminent unlawful conduct. There are continual attempts by government to expand or push the edge on these categories of unprotected or less protected speech, but Courts with vastly different ideological compositions typically resist efforts to carve out exceptions.  As observe in the Third Circuit’s opinion in Stevens, it has been over 25 years since the Court has recognized a new categorical exception to the content discrimination rule.

Given that resistance, the Court’s decisions to review Stevens, Snyder, and Entertainment Merchants in such a short time frame are certainly noteworthy. Read More

Treasury’s Prime Directive: Protect the Banks

Adam Levitin has been one of the most courageous and compelling commentators on the financial crisis. So it’s not much of a surprise to see this report on his latest testimony before the Senate Banking Committee:

First off, he lamented the fact that we have been holding hearings like this since 2007. “Every year we have another set of hearings, and you can add 2 million foreclosures” to the bottom line. Nothing gets fixed, despite all kinds of documented evidence that the banks and servicers have committed fraud. Levitin’s position is that the servicers should be banned from the loan modification business entirely, because they don’t have any interest in it except as a profit-maximization scheme, and they have massive conflicts of interest that cut against doing right by the borrowers (and even the investors for whom they work).

Levitin said that we don’t have the full data sets from the servicers, or any comprehensive data to see whether there is a full-on crisis of unclear title and improper mortgage assignment. In other words, we don’t quite know the full extent of the problem. Levitin said, essentially, “The federal regulators don’t want to get info from servicers, because then they’d have to do something about it.” They don’t want to recognize the scope of the problem because it would require them to act. And Levitin in particular singled out the Treasury Department. “The prime directive coming out of Treasury is ‘protect the banks’ and don’t force them to recognize their losses.”

While I’m sure the FCIC will issue a nuanced report on the web of causes behind the foreclosure crisis, Levitin sees the spider. It looks like courts are beginning to identify it, too. As Kate Berry reported in the American Banker,
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