Senator Specter on Terrell Owens

My state’s senior senator, Arlen Specter, who has lots on his plate, held a news conference this morning:

[He said that] it was “vindictive and inappropriate” for the league and the Eagles to forbid [their] all-pro wide receiver [Terrell Owens] from playing and prevent other teams from talking to him.

“It’s a restraint of trade for them to do that, and the thought crosses my mind, it might be a violation of antitrust laws,” Specter said, though some other legal experts disagreed.

“I am madder than hell at what he has done in ruining the Eagles’ season,” the Pennsylvania Republican said. “I think he’s in flagrant breach of his contract and I believe the Eagles would be within their rights in not paying him another dime or perhaps even suing him for damages.”

But Specter said, “I do not believe, personally, that it is appropriate to punish him (by forcing him to sit out the rest of the season). He’s not committed a crime, he’s committed a breach of contract. And what they’re doing against him is vindictive.”

There are several statements here that are interestingly wrong. One worth thinking about is the idea that the Eagles are punishing Owens by enforcing the contract’s “conduct detrimental” clause. On one level this can’t be right – the Eagles are paying their employee for not working, hardly an onerous result. But theory notwithstanding, reading the arbitrator’s decision, it sort of feels like punishment. Doesn’t it?


On Becoming a Supreme Court Clerk


This article about David Bragdon, who was just hired to clerk for Justice Thomas, is worth reading, especially for those who miss their A3G fix. Bragdon is significantly more forthcoming in print than I would have expected. Two choice quotes:

“I think conservative justices are more likely to hire conservative clerks,” he said. “I interviewed with Justice Thomas and his clerks, and his clerks really drilled me on my judicial philosophy, both to see how much I knew and to test my ability to argue various issues.”

“There could be some shifts in the way the Supreme Court decides certain issues [based on the new justices coming to the court],” he said. “I don’t think Roe vs. Wade will be overturned, there aren’t enough votes to change that decision, but other key issues could be affected.”

Too bad the interviewer didn’t ask the obvious follow-up question: which “key issues” does this rising Supreme Court clerk think will be affected by the confirmation of Justice Roberts and the possible confirmation of Judge Alito?

(Hat Tip: Howard B.)


Google’s Empire, Privacy, and Government Access to Personal Data

google-priv.jpgA New York Times editorial observes:

At a North Carolina strangulation-murder trial this month, prosecutors announced an unusual piece of evidence: Google searches allegedly done by the defendant that included the words “neck” and “snap.” The data were taken from the defendant’s computer, prosecutors say. But it might have come directly from Google, which – unbeknownst to many users – keeps records of every search on its site, in ways that can be traced back to individuals.

This is an interesting fact — Google keeps records of every search in a way that can be traceable to individuals. The op-ed goes on to say:

Read More


The End of Shame

With talk these days about the decline of privacy, the disappearance of shame deserves attention. People have become less self-conscious—more willing to let the world into their intimate spaces without any sense of embarrassment. Webcams, whose operators actually invite voyeuristic strangers to observe their every move, are just one example.

The past few years have also seen a marked rise in the number of people who believe it is acceptable to take care of personal hygiene and grooming in public. Every morning I ride the subway, professional women in my car are busy applying makeup. I don’t mean making last minute touch-ups—with makeup kits perched on their knees, they’re painting a blank canvas.

I frequently also see otherwise normal looking subway riders filing and trimming their fingernails. I’ve seen eyelashes curled, eyebrows plucked, and nose hairs removed with little tweezers. (Where do these people suppose all their personal droppings end up?)

Read More


Clearly I’m teaching the wrong classes. . .

The CNN headline pretty much says it all: “Girl with peanut allergy dies after kiss.” It is proof of my through law-geekiness that my first thought was “that would make a great question for a torts exam!”

Torts finals always seem to involve strange hypotheticals. I still remember my own torts final as a law student — it involved a man who opened his umbrella in the rain, and was struck by lightning.

It’s pretty hard to work a peanut-kiss-death into my Wills final or my Securities Regulation final. (I suppose I could try to work it into some strange hypothetical to test the statutory bar on inheriting from a decedent who is murdered by the devisee, but that would be a stretch. And besides, those exams are already written.).

But if I ever teach torts, I’ll be thinking back to the peanut case — and wondering if I can turn it into a good hypothetical about a “kiss of death.”


Voices from the Past


This very fine New York Times article on the New York Historical Society’s exhibit on slavery in New York begins by talking about visitors recording their reactions to the exhibit. We should also think about listening to the voices of people who had lived as slaves.

Some of the great treasures of American history are the slave narratives collected by the WPA. And through the magic of the internet, you can listen to the Library of Congress’s audio collections of the voices of people who were born into slavery.

I’ve enjoyed listening to them, because I love hearing the songs (like Keep your Lamp a’ Trimmed and Kingdom Coming), the accents, and the recollections of the folks.

Of course, the WPA and other New Deal agencies recorded a lot of other folks, too. I highly recommend the audio downloads that are available on the LOC’s website. And the LOC has some other great audio collections, like these fiddle tunes recorded in the 1960s.

The picture is from the Library of Congress’ collection of black and white photographs from Great Depression to World War II, LC-USF34- 044206-D.


Why does the Supreme Court accomplish so little?

Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.

A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.

Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices’ language, the general public would have no idea what the Court was doing.

Read More


Introducing Guest Blogger Greg Lastowka

greg-lastowka.bmpWe’re extremely fortunate to have Greg Lastowka visit here with us for the next few weeks.

Greg is an Assistant Professor of Law at Rutgers School of Law-Camden. He earned his B.A. from Yale College and his J.D. from the University of Virginia Law School. Before entering the legal academy, he clerked for the Honorable Walter K. Stapleton of the Federal Court of Appeals for the Third Circuit and practiced intellectual property and technology litigation at Dechert LLP. His recent articles include Amateur-to-Amateur, 46 William & Mary Law Review 951 (2005); The Trademark Function of Authorship, 85 Boston University Law Review 1117 (2005). To read more of his articles, click here.

We’re delighted about Greg’s visit. Please give him a warm welcome.


Introducing Guest Blogger Jason Mazzone

jasonmazzone.jpgIt is my pleasure to introduce Jason Mazzone, who will be visiting with us for the next few weeks.

Jason is an Assistant Professor at Brooklyn Law School where he teaches Constitutional Law and American Legal History. His recent works include The Security Constitution, 53 UCLA Law Review 29 (2005); Unamendments, 90 Iowa Law Review 1747 (2005); and Copyfraud, forthcoming in the New York University Law Review. He is a graduate of Harvard College and Harvard Law School and he received his doctorate from Yale Law School in 2003. He is revising his dissertation, “Organizing the Republic: Civic Associations and American Constitutionalism, 1780-1830,” for publication as a book. He was born and grew up in Tasmania.

You can read more of Jason’s articles by clicking here.

We’re extremely excited about Jason’s visit. Welcome aboard Jason!


What Law Review Articles Had a Major Influence on the Law?

book16a.jpgAl Brophy’s post about Roy Lucas’s law review article helping to form the intellectual foundations for Roe v. Wade has got me thinking about other law review articles that have had a lasting influence on the law.

Over on his new blog, Follow the Flag, Alan Tauber mentions Abbot Lawrence Lowell, The Status of Our New Possessions – A Third View, 13 Harv. L. Rev. 21 (1899), which formed the basis for the Territorial Incorporation Doctrine.

I’m most familiar with the articles in my field, privacy law, which has two law review articles having a major impact on the law.

First is Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), a law review article that spawned the four privacy torts, most of which have been adopted in most states.

William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960), also had an impact in the development of privacy law, as his formulations of the privacy torts were adopted by the Restatement of Torts, and they are the most common formulations of the torts today. [Of course, it helped that Prosser was the Reporter for the Second Restatement of Torts.]

Can anybody identify others? I’m looking for law review articles that have had a major influence on the law — statutory law or court decisions. I’m not looking for just a local impact — so if an article just influenced a particular state court decision or law, this isn’t broad enough. I want to identify articles that have changed the law in numerous states (as with the Warren and Brandeis article) or sparked a federal law. I’m also not looking for articles that are merely cited a lot by court decisions; I’m looking for ones that influenced a particular doctrine. Of course, articles can be influential in other ways, such as influencing other scholars, etc., but I want to keep the focus of this question on articles having a major legal impact.