4

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.”

0

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.

2

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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7

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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3

Wiki Your Papers?

Wikipedia.jpgNeed a proofreader and fact checker? Let the collective community of the Internet do it for you. According to CNET:

When Esquire magazine writer A.J. Jacobs decided to do an article about the freely distributable and freely editable online encyclopedia Wikipedia, he took an innovative approach: He posted a crummy, error-laden draft of the story to the site.

Wikipedia lets anyone create a new article for the encyclopedia or edit an existing entry. As a result, since it was started in 2001, Wikipedia has grown to include nearly 749,000 articles in English alone–countless numbers of which have been edited by multiple members of the community. (There are versions of Wikipedia in 109 other languages as well.) . . . .

Jacobs decided to craft an article about Wikipedia, complete with a series of intentional mistakes and typos, and post it on the site. The hope was that the community itself would be able to fix the errors and create a clean version that would be ready for publication in Esquire’s December issue. The original version was preserved for posterity.

“The idea I had–which Jimmy (Wales, Wikipedia’s founder) loved–is that I’d write a rough draft of the article and then Jimmy would put it on a site for the Wikipedia community to rewrite and edit,” Jacobs wrote on the page introducing the experiment. Esquire “would print the ‘before’ and ‘after’ versions of the articles. So here’s your chance to make this article a real one. All improvements welcome.” . . .

According to the Wikipedia page for Jacobs’ story, the article was edited 224 times in the first 24 hours after Jacobs posted it, and another 149 times in the next 24 hours.

What result?

On the latest version of the article, the original author writes:

Hello Wikipedians,

I just wanted to thank you all so much for participating in this experiment. It was absolutely fascinating. I was riveted to my computer, pressing refresh every 45 seconds to see the next iteration. And the next and the next. For the last few days, my wife has been what you might call a Wikipedia Widow.

I feel like I should submit all my articles to the community to get them Wikipedia-ized. I can’t wait to print this in Esquire magazine.

Thanks again.

AJ Jacobs

If any students are reading, don’t even think about it . . .

Hat tip: Michael Zimmer

6

Have a Question? Ask a Philosopher

philosopher1.jpgAn interesting experiment, as described by Inside Higher Ed, involves a website called Ask Philosophers where people send in their questions and philosophers respond with answers. The website is designed for the general public:

“I just thought that the Web offered philosophers a chance to do public service of the kind that they haven’t always had,” says Alexander George, chair of philosophy at Amherst College and creator of the site. “Philosophy is ubiquitous in people’s lives, but there is an unfortunate disconnect between the interests of most people in philosophy and their access to information about philosophy and the great ideas and history of philosophy.”

George recruited 34 other philosophers — many from Amherst and colleges in New England, but others from colleges elsewhere in the United States or the world. The panelists were selected for having expertise in different areas — medical ethics, Chinese philosophy, African philosophy, the philosophy of love and sex. . . .

The way the site works is that George reviews questions that are submitted by reviewers and posts those that are appropriate. . . . Then panelists pick questions to answer — George hopes they will tackle 1-2 questions a week. Those who want to comment on the answers or converse among themselves can do so on a Google group that George has also created.

13

Airport X-Ray Peep Shows

x-ray2.jpgAccording to the New York Times, the TSA is moving closer to deploying a new kind of X-ray machine at airports, one that sees through people’s clothing:

Among the most controversial technology being looked at by the Transportation Security Administration is the backscatter body scanner. The device – a boxy contraption that beams low-level X-rays through people’s clothing – has received a lot of attention because of the explicit images of passengers’ bodies it can produce.

This summer, for instance, Lori Borgman, a family humor columnist, wrote that such images were “bound to find their way to the break room, the Internet and the tabloids.” The American Civil Liberties Union has called the backscatter a “virtual strip search.”

As a result, the Transportation Security Administration has approached the deployment of the machines tentatively over the last several years. “I think that as we make the decision to roll out and go to pilot tests and move forward, we need to be sure we’re doing it in a responsible manner,” said the agency’s chief technology officer and assistant administrator, Clifford Wilke. “A person’s first experience with a new technology will determine their perception.”

But there are signs that the T.S.A. is preparing to make its move. The agency said it did not have a specific timeline, but statements made in early August by the two manufacturers of the technology – American Science and Engineering and Rapiscan Systems, a division of the OSI Systems electronics company – indicated that the plans could be made public within the next two months.

Does this technology establish the appropriate balance between privacy and security?

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0

Will the Blogosphere Affect the Miers Appointment?

miers2.jpg

VCstats3.jpgThe blogosphere is erupting with reactions to Harriet Miers nomination. Will the blogosphere affect the confirmation? What kind of effect will it have?

My guess is that the blogosphere will play an important role. Many blogs have experienced an influx of traffic this week after the nomination was announced, such as The Volokh Conspiracy, which jumped from about 25,000 visits per day to over 40,000. [The image on the right is of The Volokh Conspiracy’s visitor traffic over the past month.] These blogs are being read by those in all corners of government. They are thus influential in shaping the debate, especially among those in powerful positions. Blogs are also helpful in getting a read on what people very engaged in politics are thinking.

The confirmation hearings have largely become a meaningless ritual, where little about a nominee is revealed, where nominees merely dodge the tough questions and provide assurances that they won’t “legislate from the bench.” The more meaningful discussions are occuring in the blogosphere. Perhaps this is where Miers will be most thoroughly vetted and discussed.

0

Please check the race box…

The Cherokee Nation — which allied itself with the Confederacy during the Civil War — held black slaves until 1866, when they abolished slavery under a treaty with the United States. (Question for the Indian law gurus of the blogosphere: Would the 13th Amendment have abolished slavery among Indian tribes without the treaty?) As with white slave owners, there was more than a little genetic intermingling (to use a clinical phrase) between slaves and slave owners. Now that the tribe if flush with casino cash, the question arises whether or not black decedents of Cherokee slaves can claim a share in the tribe’s gambling revenue. The courts have not been friendly to the claims, so, according to this story in Wired, those denied membership in the tribe are turning to geneticists and genealogists. This is where it gets complicated. Most African-American’s have some nominal percentage of Native-American DNA. Also, most African-Americans have a fair amount of Caucasian DNA. Finally, just to make things extra complicated, many Cherokees — today and in the 19th century — also had substantial Caucasian DNA. Hence, a modern-day black Oklahoman claiming Cherokee status on the basis of family tradition may show nothing more than the background level of DNA for Native Americans, but the Caucasian DNA that he shows may have come into his bloodline via an ancestral Cherokee owner or an ancestral white owner. The whole complicated problem is a wonderful illustration of just what a mushy concept race becomes when you push on it too hard and the strange disputes that result when government largess gets doled out on the basis of “race.”

I will leave to Kaimi the question of whether or not descendants of Cherokee slaves who cannot gain admission to the tribe, may nevertheless sue the tribe for reparations.

4

Practical Experience is Not Enough

cornyn.jpgThe most generous way of describing my reaction to Harriet Miers’ nomination is to say that I am rather underwhelmed. So far, Bush’s two main arguments for Meirs seem to be “trust me” and “I know her heart.” Suffice it to say, I don’t find either of these particularly compelling. Senator John Cornyn (R-Tx), however, has advanced a more substantial argument in her favor. He writes:

Harriet Miers’s background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people.

Cornyn’s argument echoes, in abbreviated form, that made by Stuart Taylor last month in the Atlantic Monthly. There is some real merit to the Cornyn/Taylor critique. The Court does, on occasion, tend to be rather oblivious to the chaos that from time to time its decisions can create in the lower courts. An experienced pragmatist who has duked it out in the trenches might be a welcome addition. After all, at the end of the day Supreme Court opinions are not written to provide grist for the law reviews, but rather to announce the law. Some familiarity with the law in practice is obviously a virtue.

The problem with this argument is that it proves too much. If a life time of duking it out in the trenches qualifies one for the Court then there are few senior practioners who are not qualified to be a justice. Perhaps this is the view of some, a legal iteration of Kissinger’s dictum about being governed by the Harvard faculty versus the first ten names in the Boston phone book. (“I would rather have a Supreme Court filled with nine names chosen at random from Martindale-Hubbel, rather than nine names chosen at random from the Harvard Law School faculty.”) I have to confess, however, that it is going to take quite a bit more than this to convince me. Extended practice experience may be a virtue, but it is certainly not a sufficient one.