PrawfsBlawg

Dear Judge: No Glory Days For You

If you're a judge with a Facebook page...and if any of your old high school friends are lawyers...and if they may appear before you...then no "friend"ing on Facebook to relive those high school days of youthful prowess. At least according to Florida's Judicial Ethics Advisory Committee, because "[t]he Committee believes that listing lawyers who may appear before the judge as 'friends' on a judge's social networking page reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge." So stay away from the Boss. You'll just get depressed. Learned about this development from the NYT today, which indicates that the opinion is merely advisory, and quotes ethics guru Stephen Gillers from NYU as saying that this goes too far.  Because, I'm sure, it's disrespectful to the Boss.

Cross-Border Speech Conflicts

According to this report, two German nationals who were convicted of murder and have served their prison terms have sued the Wikimedia Foundation to have their names expunged from the English language version of an article on Wikipedia relating to the victim.  The plaintiffs have already successfully sued for the same relief with regard to coverage of their crime in German media.  Germany's privacy law apparently provides for such relief, under a high court ruling from 1973.

Cross-border speech conflicts of this sort have become increasingly common in the Internet age.  The report references the case involving an order by a French court enjoining Yahoo! from permitting the auctioning of Nazi memorabilia in France.  So-called "libel tourism," where a plaintiff sues for defamation in a jurisdiction lacking Sullivan-like protections (typically the U.K.) seeks to enforce the judgment in the U.S., has also arisen with some frequency.  Several courts in the U.S. have refused to enforce such judgments.  A few state legislatures have enacted laws prohibiting courts from enforcing certain foreign libel judgments.  Congress is currently considering libel tourism bills that would bar enforcement of foreign judgments and perhaps provide a cause of action for American defendants.  Meanwhile, across the pond, British officials are considering changes to defamation law that would prevent manipulation of its courts by defamation plaintiffs. 

These and other cross-border speech conflicts are complicated by a number of issues, including the lack of global speech and privacy laws, the uncertain "place" of the First Amendment in a digitized and globalized world, the need to develop standards for resolving conflicts among national speech and privacy laws, the "rights imperialism" that may be involved in exporting a single nation's speech or privacy laws to other nations, and the practicalities of enforcement. 

As to the last, it is difficult to see how the foreign lawsuit will provide any meaningful remedy for the plaintiffs in this case.  The Wikimedia Foundation does not appear to have any assets in Germany.  More importantly, it will be practically impossible to scrub the Web, including archival materials, of all references to these plaintiffs.  As Dan Solove explained in The Future of Reputation, this information is part of a permanent chronicle of their lives.   

The Lost Art of Dictation

I have been interested in learning the lost art of dictation ever since I watched a judge dictate cogent and linear opinions, unscripted, from the bench.  Clearly that requires impressive smarts, but I also think it has its roots in years of dictating memos, motions, etc.  I used dictation in practice to quickly "write" first drafts.  Now I'm intrigued by the modern twist posed by the iPhone and one of its applications. 

ReQall (reviewed here by David Pogue for the New York Times) allows voice notes and reminders, and I have begun to wonder whether it, or something similar, might work for legal research or the beginnings of a draft.  The technology might not be up to it: using the voice recognition, I made a "note" that (like many bloggers) I am reading In Fed We Trust by David Wessel.  The program came up with "Note: reading inside the trust by David Wetzel."  But I'm intrigued and would like to hear if others have integrated this kind of technology into their academic work process.

Facebook and More Network Economics

After years of protests, I finally joined Facebook last week.  Much to my surprise, I'm really digging it.  I realize that I'm the last person on the planet to figure out how great Facebook is (except my wife, who is still a holdout), but that's kind of the point of this post.

As I noted in my last post, network benefits accrue when the value of something goes up as more people use it.  Facebook is the poster child for network benefits.  The really shocking thing (to me) is that just about everyone I ever met, from brief professional acquaintances to high school friends I haven't seen or talked to in years are already members. I'm on LinkedIn and Plaxo, but neither of these two come close.

The twist here is the competing economic and privacy interests to get the most out of the site.

I'm sure a bunch of people have written about this, but that's why I'm blogging about it rather than writing a law review article.

It seems that the primary membership draw is that as more people join, the cheaper it gets to connect with them.  I am a heavy (and I mean heavy) user of email. For example, my voicemail comes to my email box, and then I email the caller a response.  Email cannot come close to competing with Facebook for easy distribution of information, whether mostly useless status updates to "Hey this is interesting" posts.  It also allows for cheap sifting through those posts without having to read through a bunch of email. The upside is huge - I'm keeping up with happenings of people I care about, and letting them know what I'm up to.  This is stuff that wouldn't merit a phone call, but that we all might want to know about anyway.  Great stuff.

But there's a countervailing privacy cost.  As it gets cheaper to give and get information, it gets harder to control who gets it.  I might not want everyone to see family photos or career thoughts.  The default sharing on Facebook is pretty broad (a fact that has received much criticism), and as such it has cost me time and effort to figure out how to narrow who gets information. 

For example, because the default "share" status updates and "links" apps don't have a filter to limit who gets information (through the very nifty friends lists, which are also costly to keep updated), I have posted some updates using the "notes" app, which allows more limited distribution.  It works fine, but it's a few extra steps for me and for the reader, who has to click on the note to read the whole thing.

The upshot is that there is a tradeoff (for me at least) between too little and too much connection. Perhaps a couple tweaks to the Facebook interface (like allowing limited sharing and links) might help, but not completely - the privacy settings are so numerous and complex (a good thing from a privacy point of view) that I'll always have to check them and update them periodically. I guess you have to take the bad with the good.

Who was president while Perlman fiddled?

At noon, EST, by operation of the Twentieth Amendment, George W. Bush's term as President of the United States ended. At that moment, Yo-Yo Ma and Itzhak Perlman were performing (the piece that was, by the way, my wedding processional). It was not until 12:04 p.m. that Chief Justice Roberts and Barack Obama stood up, Roberts asked "Are you prepared to take the oath, Senator?", Obama answered "I am," and they began (by the way, it was Roberts who read the oath wrong initially).

So who was President between noon and 12:04? The Twentieth Amendment states, referring to the noon end of the current President's term, that "the terms of their successors shall then begin." This seems to suggest that the transition happened at noon and the oath is a formality. And if you look at the blog of the re-designed White House web site, it announced Obama-issued proclamations time-stamped 12:01 p.m. And CNN flashed on the screen that Obama had become President as of noon.

But the oath is prescribed in Article II to be taken "[b]efore he enter on the Execution of his Office." Does this mean the oath is necessary for someone to become President? Or does it mean that Obama was President but could not do anything until he had taken the oath? If so, why did Roberts call him Senator before issuing the oath and not refer to him as "Mr. President" until after the oath was completed? And does all this mean that Joe Biden was acting president for four minutes? And what of Robert Gates?

Finally, what are the odds that someone files a lawsuit arguing that Obama did not properly take the constitutionally prescribed oath of office?

Update, Tuesday, 6:15 p.m.:

Orin Kerr and Mike Dorf weigh in. And the prevailing view seems to be that he became President under the Twentieth Amendment at noon and had to take the oath before he could "enter on the execution" of his office--in other words, before he could wield any executive power. And I think I agree with that, otherwise this all becomes unnecessarily complex.

This reading also has some historical support. As Sonja noted in the comments, there was 90-minute gap between President Kennedy's death and Johnson taking the Oath on Air Force One (with Jackie Kennedy famously standing alongside him, still wearing the bloodied clothes from the assassination). And apparently the first Congress believed George Washington became President on March 4, 1789 (the day the first Congress attempted to convene), although he did not take the Oath until April 30.

Finally, one other interesting tidbit (courtesy of my FIU colleague Tom Baker, the real con law expert here): Presidents Jackson, Lincoln, and (Andrew) Johnson at various points argued that the Oath was not even necessary to exercise presidential power (that came with the job), but that the Oath gave them additional powers, namely in the realm of constitutional interpretation, beyond ordinary executive power they would have absent the Oath.

Oh, one last thing: From what I am reading, it is beginning to sound like whom to blame for the botched oath is a political litmus test. But I give Orin the final word on this.