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Juris Novus

jurisnovus.jpgWe are pleased to announce that Concurring Opinions is now a feed on the terrific resource site, Juris Novus. Juris Novus is now posting links to the headlines of our most recent postings.

Juris Novus also contains the headlines of postings at some other great legal blogs such as The Volokh Conspiracy, Leiter Reports, Lessig Blog, The Becker-Posner Blog, PrawfsBlawg, Conglomerate, JD2B, and more.

Juris Novus is part of the Meta Novus network, a group of sites that provide headlines from blogs about law (Juris Novus), technology (Machina Novus), politics (Polis Novus), science (Scientia Novus), and more. These are very useful sites, and they are definitely worth visiting.

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Do We Really Want Perfect Law Enforcement?

speeding3.jpgI just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?

Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?

Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.

In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]

So why was there such a public outcry against the program?

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Using Cell Phones to Catch Speeders

speeding-cartoon1.jpgA glimpse into the not-too-distant future . . .

You’re driving along the highway. There is only light traffic on the road, and there’s not a cop in sight. You decide to give in to that dastardly rebel within and go 10 miles over the speed limit. You get to your destination without incident, a few minutes early. The sun is shining in the sky; there’s not a cloud in sight. It’s a happy day. Life is good.

But then a few weeks later, you discover that the day wasn’t as cheery as you had thought. That’s because you were caught for speeding that day. Your ticket arrives in the mail. But there were no police officers along the route, no speed traps, no surveillance cameras. How did you get caught?

You were ratted out, betrayed by a traitor in your car. No, not a secret agent, not a rat, not a mole. Instead, it was something you trusted the most, an inseparable companion . . . it was your cell phone.

According to the AP:

Driving to work with your cell phone on, you notice the traffic beginning to slow down. Instantly and unbeknown to you, the government senses your delay and flashes a traffic congestion update over Web sites and electronic road signs.

Other motorists take heed, diverting to alternative routes or allowing more time for their trips.

Futuristic as it might seem, the scenario actually is pretty close to becoming reality.

In what would be the largest project of its kind, the Missouri Department of Transportation is negotiating with private contractors to monitor thousands of cell phones, using their movements to produce real-time traffic conditions on 5,500 miles of roads statewide.

Cell phone users won’t even know anyone’s watching them. But transportation and technology leaders assure there is no need to worry – the data will remain anonymous, leaving no possibility of tracking specific people from their driveway to their destination.

I have a quote in the story, but I’m not saying anything really profound, so I won’t bother excerpting it.

Since there is no tracking that can be linked to identifiable people, the cell phone tracking described by the article appears to pose little of a privacy concern. However, it isn’t too hard to imagine in the future new ways that these devices can be used. Previously, I blogged about how cell phones can function as an RFID device to track people’s movement. With the technology described in the AP article, it doesn’t seem far-fetched to imagine cell phones being used to determine a driver’s rate of speed. Would there be a problem if cell phones were used as a way to nab speeders?

This raises another question regarding the enforcement of the law. When we devise ways to more perfectly enforce laws such as speeding, is this desirable? To keep this post from getting too long, I will explore this question in a separate post.

1

The Unappreciated East Pediment

justiceliberty.jpgSince Miers’s nomination has focused the attention of the blogosphere on the Supreme Court, I figured that now would be a good time to discuss the unappreciated east pediment of the Supreme Court building. The lion’s share of the pedimentary attention at the Court goes to the west pediment. This makes sense, of course, since the building faces west (like the Capitol it has its back to Europe), but I think that it has led to an undue focus on the west pediment’s inscription: “Equal Justice Under Law.” Don’t get me wrong. I am all for equal justice under the law, but I think it is unfortunate this is the particular legal maxim-engraved-in-marble that has become so exclusively adopted as an icon of our law. I think that we would do well to pay more attention to the inscription on the east pediment, which reads “Justice the Guardian of Liberty.”

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The Airline Screening Playset: Hours of Fun!

After blogging a few weeks ago about the airline screening playset, I went ahead and ordered one.

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Each day, I would check my mailbox, eager with excitement about its arrival. Today, it finally arrived. I rushed to open it and began what would be hours of exciting play. Here’s what came in the playset:

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I was a bit disappointed in the toy’s lack of realism. There was only one passenger to be screened. Where were the long lines? The passenger’s clothing wasn’t removable for strip searching. The passenger’s shoes couldn’t be removed either. Her luggage fit easily inside the X-ray machine. There were no silly warning signs not to carry guns or bombs onto the plane. And there was no No Fly List or Selectee List included in the playset.

Another oddity was that the toy came with two guns, one for the police officer and one that either belonged to the X-ray screener or the passenger. The luggage actually opened up, and the gun fit inside. I put it through the X-ray machine, and it went through undetected. Perhaps this is where the toy came closest to reality.

The biggest departure from reality was that the passenger had a cheery smile on her face.

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To make the toy more realistic, I required the passenger to show her ID, which she didn’t have. Indeed, the playset didn’t come with an ID card, so it wasn’t the passenger’s fault. But I had the screener cheerfully deny her the right to board the plane. Ha!

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But she still had that silly smile.

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I wasn’t ready to give up, however, so I decided to have her searched from head to toe with the magnetic wand.

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But she still had that smile.

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Wikimania

Dan mentions the possibility of writing a paper by Wiki. He even hints that this could affect legal academia. (And I for one am shocked, shocked at the suggestion that the responsibility of writing legal scholarship might be farmed out to anonymous hooligans on the web, rather than continuing with the time-honored method of farming it out to minimum-wage research assistants).

(Definitional note for those who didn’t read Dan’s post: A wiki is an open website which allows anyone to edit any entry; the most successful is the online encyclopedia Wikipedia).

But let’s ask the real question — is Dan going far enough with wikimania? Or are there more places where wiki adoption could take the place of help out law professors?

WikiRankings.

U.S. News unreliable? Princeton Review incomprehensible? Leiter just too political? Welcome to WikiRankings. Every school is ranked, and everyone can participate in the process. Indulge in your urge to tell people that NYU stinks or that [insert your alma mater here] is really the best school in the country. (Potential downside: Columbia grads who insist on continually mentioning the fact that NYU stinks).

Wiki Law Review.

Your article will be read by an unknown number of random web participants, who can vote on which articles they like best. (How is this different from normal law review submission?)

Once accepted for publication, it will be edited through the efforts of anonymous Wikizens and then published online. (Oh, it’s an online journal!).

Hey, I like these innovations so far. Long live Wikis! I suppose it doesn’t hurt any that I’m teaching at Thomas Jefferson — currently ranked #7 in the country, according to WikiRankings* — and that I’ve just had five articles accepted by the Wiki L. Rev. Where else can we introduce Wikis?

Wiki Tenure Committee.

On second thought, let’s not go there.

* I deny all reports that in an original version of this post I wrote “and it would be ranked higher if I had coded a better javascript voting program.”

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Me and Judy Miller

A proposed bill would shield journalists from prosecution for failure to divulge their sources. No more Judy Millers!

Unless Judy was a blogger. In which case, she would not be protected.

Yes, that’s right. An unidentified source — who I cannot and will not identify* — has suggested that the proposed law will not shield bloggers. So while Judy is living it up in New York and D.C., we Concurrers will be moldering in a tiny cell. On the other hand, the publicity will be great.

So, does anyone want to e-mail me some juicy leads relating to anonymous sources? I promise, I’ll guard the names well.

* Okay, you got me. You broke past my iron will. The source for my controversial assertion — that bloggers are not protected by the proposed shield law — was Matt Drudge. Don’t arrest me, please, go arrest him.

Also, I think he may be married to a CIA agent.

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Hurricane Katrina and Credit Scores

creditscore1.jpgBob Sullivan at MSNBC writes:

A second storm surge may soon start slamming into Gulf coast residents hit by hurricanes Katrina and Rita. Mounting unpaid bills will lead to a surge of black marks on victims’ credit reports, say consumer advocates, sinking their credit scores. And now, they say, efforts to convince the nation’s credit bureaus to develop new systems to account for victims’ temporary bill-paying troubles have hit a major snag.

Consumers who can’t make their house payments any more – even if that house has been completely swept away by the storm – may face the ultimate penalty in America’s credit-driven society: A credit score so low they won’t qualify for the loans they need to start rebuilding.

Consumer groups, anticipating the coming surge of late payments and account defaults, have asked credit bureaus to help. The consumer groups proposed that the bureaus take a pre-Katrina credit score snapshot of all residents in the affected areas. Later, when victims apply for loans, the pre-Katrina score could be used to identify whether victims were good credit risks before the storm.

This sounds like a sensible proposal, something that will help the survivors of the hurricane rebuild their lives. After all, without good credit, it is much more costly to take out a loan, and sometimes nearly impossible to get a loan or credit.

Fair Issac, the company that creates the formula for generating credit scores supports this proposal. The credit reporting agencies, however, won’t have any of it:

But on Thursday, consumer groups revealed that the nation’s three bureaus – Experian, Trans Union, and Equifax – have declined to participate in the plan.

The reasons are:

A second score likely wouldn’t comply with parts of the Fair and Accurate Credit Transaction Act, the firm indicated in a letter sent to Consumers Union.

Equifax’s David Rubinger said the presence of a second score could create confusion both for lenders and consumers. Also, credit bureaus and lenders sometimes use alternate scoring systems, he said, so a snapshot FICO score would be of little use to those lenders.

First of all, I’m not familiar with a provision of the Fair Credit Reporting Act (FCRA) that would prohibit reporting a second score. If there is something in the law that prohibits reporting another score, then Congress should make an exception for victims of certain sudden catastrophes.

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The Blog Impersonators

mierblog3.jpg

Harriet Miers, as my co-blogger Kaimi pointed out, is the first Supreme Court Justice nominee to have her own blog – Harriet Miers’s Blog!!! Her first entry:

OMG I CAN’T BELIEVE I’M THE NOMINEE!!!

This is BIGGEST DAY OF MY LIFE!!! EVER!!!!

OMG OMG OMG

Needless to say, it’s a fake. And so is a blog called Luttig’s Lair purportedly written by Judge J. Michael Luttig.

Anyone can sign up on a free blogger platform, such as Blogger, and create a blog. In anybody’s name. In your name. You might have a blog and not even know about it.

The Miers and Luttig blogs are quite funny because everybody knows they’re phony. But it is easy to imagine a case where reality and parody are not so readily discernable. What’s to stop me from creating a blog by you? (Don’t even think of vice-versa!)

The law provides at least two potential remedies. One is the tort of libel, which provides for damages when a person publishes falsehoods that damage the reputation of another. This wouldn’t apply to Miers because the blog is an obvious parody – no reasonable person would think it were true.

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