1

This one takes the cake

The Co-Op has a long and glorious tradition of blogging about public sex. We’ve posted about sex tapes. About Jennifer Aniston nudity. And about the privacy implications of students who have sex in front of an open window (and are photographed doing so).

But the latest blog story truly takes the cake. Blogger Scott Kaufmann recounts his uniquely interesting morning. The tale begins:

ME: Do do do do WHOA!

HALF-NAKED COUPLE IN MY OFFICE: GET THE FUCK OUT OF HERE!

ME: What?

HALF-NAKED FEMALE: DON’T YOU KNOCK? (putting shirt back on)

I don’t even know where to begin with this one. Perhaps we should turn seek the opinion of our resident privacy advocate. Dan, does an amorous couple have a reasonable expectation of privacy if they choose to have sex in a faculty member’s office? I think Professor Kaufmann’s actions may have put an unreasonable damper on their free speech and expression.

13

Privacy and Guns

gun2.jpgOver at the Volokh Conspiracy, Eugene Volokh (law, UCLA) fires off a few questions regarding the privacy of gunowners. He asks whether gun registration and licensing records should be available to the public. He also asks whether the requirement in some places that one cannot carry a concealed weapon is “an impermissible burden on people’s privacy.” Eugene writes:

I’m particularly interested in the views of those people who are sympathetic to gun controls — and especially in limits on concealed carry — but also see themselves as supporters of privacy.

Well, that’s me, so I’ll take a shot at responding. Although I am generally sympathetic to gun controls (not absolute bans of guns), I don’t support infringing upon the privacy of gun owners. Often, this is used as a proxy for gun control, and it isn’t a legitimate one or even an effective one.

Gun records should not be publicly available. I haven’t heard a good articulation for why the public needs to know who owns a gun.

However, I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons. This might be very useful in solving gun crimes. I would, of course, favor strong protections to prevent government abuse of such data or government dragnet searches of people who own guns.

Regarding open carry laws, I have a hard time understanding the justifications for these laws. Do we really want people walking around with their guns openly displayed in their holsters? This isn’t the Wild West, and I don’t understand the benefits of prohibiting concealed guns. Unless there’s a compelling benefit articulated, I don’t think that open carry laws would be justified against the infringement upon privacy.

2

Government and Disasters: The Emergency Commandeering Option

Destruction.jpgHurricane Katrina demonstrated the problem, inherent to federalism, of federal-state coordination in responding to emergencies. When emergencies overwhelm localities and states, an effective response requires the assistance of the national government. Yet the national government itself is ineffective if it cannot quickly and efficiently coordinate and work with state and local personnel who—because they vastly outnumber federal civil personnel and are in the immediate vicinity of the emergency—necessarily carry out much of the response effort on the ground.

Thus, when it became clear that state and local officials could not deal adequately with Katrina’s aftermath, the President requested Governor Louisiana Kathleen Blanco to place New Orleans’ police under the control of federal officials so they could coordinate the overall response. Concerned with yielding control, the Governor refused the President’s request. As a result, federal and state personnel responded to the hurricane’s aftermath without the benefits of a single command structure; while people perished in New Orleans, officials argued about who was actually in charge.

So far, the only solution presented to this problem of federal-state coordination is itself highly problematic: the federal government can bypass civilian workers entirely and deploy the national military in their place. During Katrina the President considered this option, and the President has since called on Congress for specific authority to mount a military response to future domestic emergencies. However, the use of troops, currently prohibited in many circumstances under the Posse Comitatus Act of 1878, carries risks: professional soldiers, armed and ready for warfare, might produce order at the price of liberty.

There exists an alternative solution to the problem of federal-state coordination in emergencies, one that has been used at various times in our history, and that is based on some forgotten provisions of the Constitution. The solution is to allow the national government, in responding to certain kinds of emergencies, to call into periods of mandatory federal service local law enforcement and other personnel of the state in which the emergency occurs and, where needed, personnel from neighboring states.

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6

Is the Supreme Court Moving to the National Mall?

supreme-court-on-mall2a.bmpI was reading a Washington Post article about plans to expand the Mall in Washington DC because of all the clutter from new monuments, museums, and memorials. On this page, the Post has a few visions for the new expanded Mall, which would utilize East Potomac Park. I was quite surprised when I read the caption at the top of the drawings:

Architects have responded to a call for ideas on expanding the Mall, particularly into East Potomac Park, with visions of plazas, museums, a new Supreme Court building, stores — and beaches.

Many people’s first reactions might be: Beaches? In Washington, DC? But I’m a law nerd, so my reaction was: A new Supreme Court building? On the Mall?

Sure enough, one of the proposals has a new Supreme Court building sitting not too far from the Jefferson Memorial. I’m not too keen on this idea.

First, I think that the current Supreme Court building is glorious, and I wonder whether we really need a new Supreme Court building. As Jason Mazzone notes, the Court certainly hasn’t been expanding its workload of late, so why would it need more space?

Second, I wonder whether the new location is a commentary on the Supreme Court. Instead of its current location behind the Capitol, it will sit rather isolated in a place near memorials. Is this insinuating that the Court has become isolated and aloof, sitting on an island practically all by itself? Is it insinuating that the Court has become an historical relic, something that mattered once in the past but that is now relegated to serving largely as a memorial?

Related Posts:

1. Solove, Old Courthouse Architecture

2. Solove, New Courthouse Architecture

3. Solove, More New Courthouse Architecture

5

Ann Coulter: Come to Tuscaloosa

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Thanks to one of my star students, Lee Birchall–a man with a degree from Dartmouth and a varsity athlete there who’s now on the Alabama Law Review (look for a great article on golf law as a measure of American society coming soon to a law journal near you)–there are yet more phrases for the Ann Coulter talking doll! This time, it’s “I love to engage in repartee with people who are stupider than I am.”

Lee’s a big fan of Ms. Coulter. After reading about her speech at the University of Connecticut, he’s starting a move to get her to speak at UA. I know she’ll get a warmer reception here than at U.Conn, at least if you can judge from the reception that Phyllis Schlafly received last spring at UA. And the good news is that he’s offered to serve as her social host.

13

Religion, Prisons, and the Irony of the Law

Prison.jpgFrom time to time, my practice involves work for religious institutions and other parties dealing with issues involving the legal regulation of religion. Hence, I have done a bit of litigation involving the Religious Land Use and Institutionalized Persons Act (RLUIPA). It recently occurred to me that this law creates a neat little legal paradox: It is entirely possible that you could be sent to prison for engaging in some activity only to find that “on the inside” you had a legal right to engage in precisely the activity that put you there in the first place!

RLUIPA is the second round in Congress’s response to the Supreme Court’s decision in Employment Div. v. Smith. In Smith, the Court held in an opinion by Justice Scalia that religious conduct (in this case the use of the hallucinogen peyote as part of the sacrament of the Native American Church) that was forbidden by a neutral law of general applicability was not entitled to constitutional protection under the Free Exercise Clause. In other words, the government could not pass a law that said, “The use of Peyote as part of a religious sacrament is forbidden,” but it could pass a law that said, “The use of Peyote is forbidden.” So long as religion is not singled out, the Free Exercise Clause, so said the Court, has nothing to say.

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4

New York Times on Gold Farming

gold.jpgThe New York Times carries a story today on gold farming activities in virtual worlds. “Gold farming” is the term used for acquiring virtual wealth within multi-player games like World of Warcraft and then selling it to other players for real cash. As the Times notes, it is a growing industry, despite the fact that the sales are usually in violation of the software contract of the games.

I mention this because exploring the legal issues raised by these environments has been a pet project of mine, and it has been interesting to see the popular media attention increasingly given to multi-player games as their demographics expand. In many ways, the predecessors of World of Warcraft were part of the impetus for the debates in the 1990’s over the growing importance of cyberlaw as a field for legal inquiry. For instance, William Mitchell’s City of Bits, about the construction of digital social spaces, is a book from 1994 that is well worth reading today.

If you want a crash course on the economics and society of virtual worlds, I’d recommend Virtual Worlds by Ted Castronova, Unreal Estate by Julian Dibbell, and this blog. For some thoughts on the legal dimensions, Dan Hunter and I have published two articles on point: The Laws of the Virtual Worlds and Virtual Crime. Among other writings on the topic are Virtual Property by Josh Fairfield and Virtual Liberty by Jack Balkin.

Even Judge Posner thinks this stuff is cool.

5

Should Divorce Records Be Public or Private?

divorce2.jpgA USA Today story raises the issue about whether divorce records should be public or private. The article has a good discussion of the law of divorce record confidentiality, and it has examples of several cases where reporters obtained divorce records of celebrities and politicians in order to glean juicy bits of gossip. One of the most interesting cases involves Republican U.S. Senate candidate Jack Ryan, who ran in Illinois in 2004:

Republican contender Jack Ryan quit the race after news organizations persuaded a Los Angeles judge, over objections by Ryan and his ex-wife, to unseal their 2000 child-custody battle. Jeri Ryan, an actress in TV’s Boston Public and Star Trek: Voyager, had alleged that her husband dragged her to “sex clubs” and asked her to have sex with him in front of strangers. She said she refused. . . .

I’m quoted in the story as siding with keeping divorce records confidential:

Daniel Solove, a professor and privacy advocate at George Washington University Law School, says it was “inappropriate” for the court to release the Ryan allegations. “It’s a private matter, essentially a dispute between this couple. We don’t say, ‘You’re running for politics and your priest should have to divulge confession records.’ ”

But Donald Schiller, a Chicago attorney, says, “If you’re putting your character on the line for voters to see, maybe there should be no secrets. But that shouldn’t apply to the average man or woman.”

Although my quote came out fine, I wouldn’t describe myself as a “privacy advocate.” Both Schiller and I agree that divorce records should be private, but Schiller believes that they shouldn’t be private for politicians. I believe they should be presumed to be private unless there’s a very compelling reason to the contrary. Who’s right, Schiller or myself? What about the divorce records of celebrities? Should they be public because celebrities are public figures? And perhaps, one could argue, divorce records should be public for everybody, even if they’re not famous. After all, people getting a divorce are availing themselves of the courts, and courts are public institutions.

This is a very interesting and contentious issue. States are all over the place when it comes to policies regarding whether divorce records remain sealed or not. The article continues:

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0

Fanny Ellison

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Thanks to my friend and Ellison scholar Lucas Morel, I found out that Fanny Ellison, Ralph Ellison’s widow, died recently in New York of complications of hip surgery. She was 93. I had not known, until I read the New York Times obituary, how important she was in civil rights, theater, and culture in the 1940s, nor of her role in helping with Invisible Man.

I’m a huge fan of Ralph Ellison. Invisible Man, of course, has much to recommend it, particularly for lawyers. A lot of Ellison’s mission in IM runs parallel to what the NAACP was trying to do through litigation in the years leading into Brown. And while it may be stretching the case to say that the invisible man authored Brown, I think Ellison’s goal of focusing on our common humanity and on seeing people as individuals, rather than members of despised groups, appears in Brown as well.

One of my favorite passages in IM involves the elderly couple, who’re being evicted from their Harlem apartment. The couple’s meager possessions are strewn on the sidewalk; there are fragments of life stretching back to the era of slavery–emancipation papers, a picture of Abraham Lincoln, a commemorative plate from the St. Louis World’s Fair, a newspaper account of Marcus Garvey, letters from their grandchildren, cheap furniture. The Invisible Man’s refrain was, “[W]e’re a law abiding people.” Yet, the elderly couple was being evicted. So Ellison asked by what law were the couple being evicted? How could that eviction be consistent with law? The eviction was demanded by the “laws,” it is true:

[L]ook up there in the doorway at that law standing there with his forty-five. Look at him, standing with his blue steel pistol and his blue serge suit, or one forty-five, you see ten for every one of us, ten guns and ten warm suits and ten fat bellies and ten million laws. Laws, that’s what we call them down South! Laws!

The couple had almost nothing from which they could be evicted. All they had was “the Great Constitutional Dream Book” and even that they could not read.

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3

Scientists Say The Sun Rises in the East

This story (via Andrew Sullivan) on Iran President Mahmoud Ahmadinejad’s view of Israel and the holocaust, contains the following paragraphs:

“Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail,” [a news organization] quoted Ahmadinejad as saying.

“Although we don’t accept this claim, if we suppose it is true, our question for the Europeans is: is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?” he said.

“If the Europeans are honest they should give some of their provinces in Europe — like in Germany, Austria or other countries — to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it.”

Historians say six million Jews were killed in the Nazi Holocaust.

Those crazy historians and the things they “say.”

It isn’t as though Reuters doesn’t believe that it can state things as facts. Other examples of facts, shorn of attribution, from the article include:

Ahmadinejad’s earlier “call in October for Israel to be ‘wiped off the map'” “sparked widespread international condemnation.”


“Close allies when Iran was ruled by the U.S.-backed Shah, Iran and Israel have become implacable foes since Iran’s 1979 Islamic revolution.”

Jews trace their roots in Israel back to Biblical times.