Category: General Law


who can resist that face??

Tyler 2.jpg

Apropos of pretty much nothing, I thought I’d share a picture of my adorable mutt, Tyler. I just adopted him this past August. As one of my friends says – Tyler is of “unknown but surely disreputable origin.” My guess is he’s part greyhound, maybe some springer spaniel, maybe some dalmation.

I note also that this is not Tyler’s first appearance in the blogosphere – he once made a cameo appearance in a Jurisdynamics post, courtesy of Jim Chen.

Finally, in an effort to give this post some socially useful content, I would highly recommend to any prospective pet owners out there that you consider adopting your furry (or feathered, or scaled) friend from a shelter. is a wonderful, nationwide resource. That’s how I found Tyler. Just go to the site, type in your zip code and other requested info., and they’ll link you up to info. on local shelter pets that match your interests.


Teaching Rape in a Criminal Law Class

I am teaching Criminal Law this semester and just finished a unit on rape. I am always fascinated by the number of colleagues I encounter who do not teach rape in their introductory criminal law class, presumably because they fear the topic is too controversial or inflammatory. I, on the other hand, can’t imagine not teaching it. It’s a topic that unfortunately touches so many students’ lives and also serves as a wonderful example of how changing social norms and the criminal law shape — and reflect — each other. I also find every year that my two classes on rape law contain some of the most thoughtful and engaging class discussions of the entire semester. I am always tremendously proud of the way my students approach the materal. But maybe my perspective is unique and I would love to hear other thoughts. For our law professor readers, do you include a unit on rape, and why or why not? For our law student readers, did you find it important or useful to cover rape law in your introductory crim law course?


Wash. Post: “U.S. Seeks Silence on CIA Prisons”

from today’s Washington Post — here are the first two paragraphs, for the rest you can link from this post (the whole post’s a hyperlink)

U.S. Seeks Silence on CIA Prisons

Court Is Asked to Bar Detainees From Talking About Interrogations

By Carol D. Leonnig and Eric Rich

Washington Post Staff Writers

Saturday, November 4, 2006; A01

The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the “alternative interrogation methods” that their captors used to get them to talk.

The government says in new court filings that those interrogation methods are now among the nation’s most sensitive national security secrets and that their release — even to the detainees’ own attorneys — “could reasonably be expected to cause extremely grave damage.” Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26.

Academics & Search Engines

To balance what I’ve just written on politics & search, let me excerpt an article considerably more sympathetic to the “manipulation of results” enterprise:

Let’s say you’re a law professor who is trying to build a reputation as an expert on affirmative action. In the past, you’d build that reputation by publishing articles in various high-profile publications, or journals with scholarly credentials. Many of those articles would show up in a Google search using the key words “affirmative action,” of course, but they’d be scattered all over the results. Because Google considers links to be a kind of vote endorsing the content of a given page, if you created a specific page called “affirmative action” — where your various articles and thoughts were collected — and encouraged others to link to that page, you could very quickly “own” affirmative action in Google. (Right now, none of the top results are associated with an individual, and most are intended as neutral, dictionary-style definitions and discussions. But that needn’t be the case.) And of course, once your page made it to the Top 10, positive feedback would be likely to propel your page higher in the rankings, as more people linked to the page, having found it originally via Google.


This strategy happens to be old news to the bottom-feeders of the digital world: the spam artists who have long hacked the Google database to ensure that their sites rank highly when people search for “sex” and “blackjack” and “cheap Canadian meds.” But just because the spammers got there first doesn’t mean that Google-centric positioning cheapens the work of intellectuals. The Nation and Harper’s exploit the very same postal system that the junk mail impresarios use, after all.


[It may be] inevitable that intellectuals who are interested in speaking to a wider audience will orient their work around Google’s rising influence. [F]or the mainstream understanding of complex issues, Google (and Wikipedia, whose entries often rank near the top of Google searches) are quickly becoming central authorities.

I’m a bit less optimistic about this development than Johnson is, if only because I’ve long worried about unintended consequences of ranking systems. But I may just be expressing an academic prejudice against populist editing. And I must say that sites like this, by Vernellia R. Randall, are a great public service that likely deserve to be the top hit for a Google search for “race and health.”

EULA Hoops

End User Licens Agreements (EULAs) govern virtually all software programs, and their restrictive terms have tended to multiply and intensify over time. Wendy Seltzer has expertly deconstructed the new Windows Vista license, and a number of commenters have added their own complaints. The terms of use appear to eviscerate rights traditionally enjoyed by users under copyright law. Seltzer concludes:

Users never asked for these impossible limitations. Microsoft decided unilaterally to add them, claiming it could abrogate personal ownership, fair use, and first sale rights because “The software is licensed, not sold.” If Microsoft faced real market competition on the home desktop, users could vote with their wallets, but anticompetitive practices and network effects [discussed here] make Microsoft a like-it-or-not proposition for most users.

Eric Goldman has also been covering the EULA wars, here and here.

Following up on these posts and some of Dave’s interesting contractual hypotheticals, I’m wondering how far the EULA can go. Can someone agree to a term like “The meaning of any contested terms of this license shall be exclusively determined by an agent of the licensor, and licensee hereby waives any right to appeal that determination”? Could this just be viewed as just another form of (lawless) arbitration? Or is this type of term a bit too extreme to be recognized by a court? If anyone can point to a good discussion of the topic, I’d be grateful.

The Young and the Lawless

downloadingcommunism.jpgI got some interesting comments a week or so on a post called “Is Anyone Against Open Access?” (on the recent movement to make legal scholarship more accessible). I wanted to respond to one point from William McGeveran, who made a point against a status quo of sotto voce infringement:

Even if users of law review content can get away with ignoring a copyright because the practical risk of suit is low, I don’t think that’s enough. After all, we are supposed to be committed to both (1) the law and (2) intellectual openness and interchange. Accepting quiet infringement seems to run against both principles.

McGeveran’s point reminded me of an op-ed column complaining about the recent ban on internet gambling:

The temptation for good citizens to ignore a stupid law is encouraged when it is unenforceable. In this, the attempt to ban Internet gambling is exemplary. . . . And so the federal government once again has acted in a way that will fail to achieve its objective while alienating large numbers of citizens who see themselves as having done nothing wrong. . . . Reflexive loyalty to the rule of law is an indispensable cultural asset. The more honest citizens who take for granted that they are breaking the law, the more their loyalty to the law, and to the government that creates it, is eroded.

And indeed, some recent studies have charted the rise of the “middle class criminal,” arguing that “because of corporate scandals such as the Enron affair or smaller, day-to-day experiences of feeling ripped off, people have developed a syndrome of ‘market anomie’ characterised by distrust, insecurity and cynicism towards laws and regulations.” The “stop snitching” movement may be one more manifestation of the trend.

Still, I think one can distinguish “low enforcement of copyright” from other, more troubling trends of lawbreaking. For one thing, it’s often not really clear if anyone is being harmed by a given act of copying. The added exposure from the unauthorized use may ultimately redound to the benefit of the copyrightholder. Moreover, some new IP laws seem so complex, and so alien to our ordinary experience of culture, that users appear to think of themselves as “civilly disobedient.” Indeed, what looks to be a fascinating panel at AALS this year will focus on just that question. Finally, though they might seem like lawbreakers at first, those who aim to change our understanding of the law via novel and innovative uses of IP may end up looking like visionaries.

So even the superhero Attorney Man might be confounded by the difficult legal and moral issues involved here.

Directions for Legal Education?

In his wonderful book Three Rival Versions of Moral Enquiry, Alasdair MacIntyre claimed there were three main “rival” worldviews that can guide our conduct: Enlightenment rationality, Nietzschean genealogy, and the “Thomistic-Aristotelian” synthesis. As anyone familiar with After Virtue can guess, MacIntyre was pretty skeptical of the university system, and suggested that “fundamental debate on . . . moral questions” may not be possible in “the conventional academic system.”

I was reminded of MacIntyre today by three articles I’ve come across on education recently. MacIntyre himself is still critiquing the fragmentation of the American university. Meanwhile, NIH bioethics czar Ezekiel Emmanuel seems to speak up for the enlightenment when he argues that medical education must incorporate far more social scientific training. He also foresees a great deal more collaboration among professional schools:

Collaboration among medical, business, and law schools would be a win-win situation. Medical students would be better prepared to deliver effective care, run research groups, and administer practices and hospitals. And universities would have a model for effective multidisciplinary, multischool education.

And finally, we come to the Nietzschean alternative: a postmodern appropriation of pop culture that turns an entire class into a video game. The professor claims that it may be “the first [class] to fully emerge students in a narrative story and treat the whole course as a game.” Part of me worries about a “gamist perspective” that requires participants not merely to learn about a subject, but to enact it. But I imagine this might be very effective pedagogically. I just hope that the types of humanistic values that Emmanuel and MacIntyre worry about can be programmed into these types of experiences.