20

Weird E-Bay Auction

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Via one of my contracts students, I found this bizarre ebay auction. The winning bidder paid $611.00 for the following item [emphasis added]

This is the PREMIUM BUNDLE BOX only. It would include bonus accessories, if it were the actual PREMIUM XBOX 360! DOES NOT Come with 20GB Hard Drive, Console, HD Cables, Wireless Controller, Headset! In other words for those of you who do not understand, YES YOU ARE GETTING AN EMPTY BOX SO DO NOT ASK! Great for gags! DO NOT bid if you don’t intend to buy! No excuses, I will not retract bids for you! You will be reported to eBay if you backout after winning the auction. I Cannot be more clear! This is not even a factory made xbox 360 box. I made it myself, just a few minutes ago. It does not contain an Xbox 360 console, just the Xbox 360 home-made box. this box is great hand made by me says XBOX right on it[.] It doesn’t look anything like the picture I included in the auction. It looks much better, in my opinion.

The student (rightly) noted that a disappointed buyer would have a hard time making out a fraud claim. Other defenses and excuses (mistake, unconscionability, no meeting of the minds, etc.), seem similarly problematic. The only possible wriggle-room I can think of – if the buyer does in fact feel aggreived when she or he receives the empty box – is that the auction history seems to bear some marks of puffing.

So, I guess someone is getting a $600+ empty box (not even an XBox Box!) under the tree, or by the menorah, this holiday season. They better appreciate it.

4

Why Don’t More Women Want To Be Law Professors?

ProfessorImage.gifFor several years, the number of women in law schools has been very nearly the same as the number of men. But more men want to become law professors.

Among entry-level applicants for law teaching this year, the ratio of men to women is about 3:2. (The figure is based on the list of participants in the Association of American Law Schools recruiting program, the normal route to law teaching.)

Many schools want to increase the number of women on their (largely male) faculties, but the task is difficult if for every two women applying for jobs, there are three male applicants.

As reflected by the overall stiff competition for teaching jobs, being a law professor is a wonderful thing. Professors get to work on whatever interests them. The hours are embarrassingly flexible—few other jobs let you leave town for the entire summer. The pay, while less than in private practice, is very good. Nobody is supervising you on a day-to-day basis. And you can avoid co-workers you don’t like.

So why don’t more women law graduates apply for this most perfect of jobs?

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0

ChoicePoint Wants Your Motor Vehicle Records

choicepoint2.jpgFrom the LA Times:

In recent months [ChoicePoint] has been meeting with officials of the California Department of Motor Vehicles in an effort to add the state’s nearly 30 million vehicle registration records to its existing database of 19 billion nuggets of personal information — a hoard that is already the biggest in the industry.

ChoicePoint says it requested the DMV records for a client, the U.S. Department of Homeland Security. That suggests it may ask the state to waive the normal fee of 10 cents per record, or about $3 million. By state law, government agencies can access DMV records for free.

The article has some interesting facts about ChoicePoint’s prior accessing of DMV records from other states:

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2

Sex + Open Window = Photos + Internet

camera3a.jpgA simple equation of modern life. This story has an interesting set of ingredients: sex photos, privacy, email, websites, and free speech. From the Chronicle of Higher Education:

The University of Pennsylvania has charged at least one student with sexual harassment and misuse of electronic resources after he posted pictures on the Internet that show students apparently having sex while standing beside a large window in one of the university’s high-rise dormitories.

Pictures of the nude students were taken by more than one photographer. The images made the rounds through e-mail messages and various Web sites, and at least one of the photographers posted the pictures on his personal Penn Web site at the end of September. Pictures taken by a different photographer were posted, and widely viewed, on collegehumor.com.

Although the subjects’ faces are not clearly seen in the photographs, Penn students eventually found out who they were. At least one of the students in the pictures filed a sexual-harassment complaint with the university’s Office of Student Conduct, naming the student who posted the images on his Penn Web site.

Student-conduct officials completed their investigation early in November. They recommended that the student, identified only as a junior majoring in engineering, write a letter of apology, write an essay explaining why what he did was wrong, and be placed on disciplinary probation until graduation, a penalty that would create a permanent record of the incident.

Those coming to the defense of the student note that the couple was having sex in public view and wasn’t entitled to privacy and that the University’s attempt to sanction the student was chilling of free speech.

According to another article, the University subsequently dropped the charges against the student, but still noted that it strongly disapproved of the student’s behavior.

Thanks to Orin Kerr for pointing out this story.

6

Alito’s Footnote 10

Judge Alito’s June 3, 1985, strategy memo to then Solicitor General Charles Fried on Thornburgh v. American College of Obstreticians has gotten some recent attention on the blogs and in the news media. Fried’s cover note was a sure red flag that this would be better than a mere thank you note: “I need hardly say how sensitive this material is, and ask that it have no wider circulation.”

I haven’t seen extended focus on footnote 10 of the memo, which might become relatively significant at Judge Alito’s confirmation hearings. Alito’s strategy memo is a case for not directly attacking Roe. However, he didn’t want the readers of the memo to think that this strategy “even tacitly concede[s] Roe’s legitimacy”. Quite to the contrary, footnote 10 states:

The case against Roe v. Wade has been fully and publicly made. See, e.g., A. Bickel, The Morality of Consent 27-29 (1975); A. Cox, The Role of the Supreme Court in American Government, 112-114 (1976); Epstein, Substantive Due Process By Any Other Name, 1973 Sup. Ct. Rev. 167-185; Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920 (1973). In Akron, the Court’s reponse was stare decisis and the “rule of law.” [emphasis added; small typos corrected; formatting made simple]

It is this last sentence that caught my eye. The implicit message of the paragraph is “lots of really smart folks have demonstrated that Roe was wrongly decided and the only thing the court could say in response was ‘stay the course’!” The sentence makes it significantly harder for Alito to follow Justice Roberts’ path, and rely on paeans to the rule of law and stare decisis in response to questions about Roe. He’s already told us what he thinks about that response, and it isn’t much. Instead, Alito might be forced to actually say that he believes Roe should be reversed.

I think that the memo makes it incrementally more likely that we will see a filibuster, and somewhat more likely that we’ll see a test of the flypaper thesis of supreme court nominations I proposed here.

10

Fake Biographies on Wikipedia

Wikipedia.jpgMost of us would be quite flattered to find an entry about us on the Wikipedia, an online encyclopedia where anybody can create or edit an entry. Not so for John Seigenthaler. His Wikipedia bio said:

John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960’s. For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven.

In a USA Today editorial Seigenthaler begins by quoting the false bio and then writes:

I have no idea whose sick mind conceived the false, malicious “biography” that appeared under my name for 132 days on Wikipedia, the popular, online, free encyclopedia whose authors are unknown and virtually untraceable. . . .

At age 78, I thought I was beyond surprise or hurt at anything negative said about me. I was wrong. One sentence in the biography was true. I was Robert Kennedy’s administrative assistant in the early 1960s. I also was his pallbearer. It was mind-boggling when my son, John Seigenthaler, journalist with NBC News, phoned later to say he found the same scurrilous text on Reference.com and Answers.com.

Seigenthaler explains how he tried to track down the person who posted the information:

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4

File-sharing & Social Capital

In the intellectual property / cyberlaw niche of the legal academy, I think it is fair to say that the litigation over Napster and Grokster has resulted in so much spilled ink that it is hard to keep up with the commentary. Indeed, while these are cases in my bailiwick, I never finished reading through the panoply of Grokster amicus briefs, much less all the law review articles on file-sharing.

What becomes quickly apparent from a skim of the literature, though, is that the policy questions entertained by lawyers in relation to file-sharing aren’t as interesting as they might be. Copyright is a doctrinally complex regime of statutes and caselaw. However, at its core, it presents a fairly simple policy story, one of economic incentives for greater production and distribution. In other words, through our legal policy lens, the song becomes a widget and the accepted policy goal becomes the production and distribution of more and more widgets. Thus, to the extent a complex legal doctrine permits it to come to the surface, the relevant policy question for file-sharing is whether it will provide the public with more or fewer song-widgets. It’s a bit disheartening that our intellectual property policy equates songs like American Pie, Hey Ya, and Toxic with three fungible barrels of crude oil–but perhaps judges, as Justice Holmes once opined, shouldn’t really be in the business of making artistic policy judgments.

As a result, though, what often gets left out of the myriad legal ponderings on file-sharing is the social dimension of the activity. This isn’t true across the board by any means — Rosemary Coombe, Mike Madison, and recent guest-blogger Joe Liu, for example, have written law review articles with a clear interest in how popular content “consumption” is actually something much more interesting than the term suggests. But because the legal doctrine of copyright rests on that reductive incentives story (with a constitutional basis), it likely seems to many legal scholars that there is little reason to pay attention to the cultural dimensions of intellectual property law.

That’s all by way of background to why I found this paper, presented at the CHI conference in April of this year, so interesting.

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3

Who’s Your Daddy?

family.jpgNepotism is at work in the legal academy. The next time you wonder how a professor with an unremarkable resume landed a job, check the family tree. You’re likely to find—sometimes even in the very same school—a professor parent.

Or spouse. Husband and wife professors complain about the burdens of finding work as an academic couple, but being married to a high-profile professor can be a significant career booster. Schools that badly want a professor will lower their standards and hire that professor’s spouse—or work things out so that the spouse can teach at another school in the vicinity. (The practice seems to be a benefit of heterosexual marriage: I’ve never heard of a same-sex couple being treated so favorably.)

Judicial clerkships are a route to teaching but here too nepotism is common. Judges are prohibited from hiring their own family members but the rule doesn’t extend to the family of a current or former law clerk. Husbands and wives, brothers and sisters, sometimes even parent and child, clerk for the same judge or justice—passing around the clerkship like it’s the family silver.

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3

The Ontology of Blogging

Dan’s critique of some of the interesting mistakes made by Pajamas Media is dead on, in my opinion. His post also calls attention to the fact that blogs and blogging have qualities that are not always grasped easily — even by businesses heralding the medium. For instance, here’s what PM says about blogs:

Readers unfamiliar with blogs are sometimes puzzled by the concept, thinking that they are mere online “diaries,” where egoists and sentimentalists record their thoughts and feelings. But the phenomenon of blogging is much more than that; it’s the modern equivalent of the Gutenberg revolution, a way of putting not just published material in the hands of the public—but publishing itself.

Sounds wonderful, but I’m going to agree and disagree with them a bit.

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8

Memory on the Sewanee Campus

sewaneeflags.jpgIt doesn’t take a lot of skill to predict that this New York Times article about the controversy over what we used to call “The University of South” and what’s now called “Sewanee: The University of the South” is going to generate, well, a lot of controversy.

First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the “Sewanee” part of its name. Alumni have been concerned (to put it mildly) that it’s not just about the name, however. They think there is a lot more at stake on the campus–like how the University deals with its distinguished and complex history. At the center of that history is the University’s founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.

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