Sunday, June 05, 2005

Orwell and CCTV: Oh the Irony!

Orwell_cctv_2 This photo from George Orwell Plaza in Barcelona delivers some delicious irony.  Closed-circuit TV (CCTV) cameras monitor the area.  Thanks to BoingBoing for the pointer.

CCTV has become quite popular in Europe, especially in Great Britain, where there are millions of surveillance cameras, as discussed in this article and book by my colleague Jeffrey Rosen.  Many US cities are quietly installing such systems or planning to, such as Chicago and New York.  A number of these camera systems are being funded with money from the federal government.

Posted by Daniel Solove on June 5, 2005 at 08:42 PM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

The Yahoo! Nude Photos Lawsuit and CDA Section 230

Yahoo The AP reports about a recent suit by a woman who alleges that her ex-boyfriend posted nude photos of her along with her email address and work phone number:

The former boyfriend also engaged in online discussions in Yahoo chat rooms while posing as [the woman] Barnes and directing men to the profiles, the lawsuit claims. . . .

Barnes sent Yahoo a letter in January saying she did not create the profiles and wanted them removed. Additional attempts to get Yahoo to remove them in February and March did not get a response, the lawsuit claims.

Can Yahoo be liable for not removing the profiles after being asked by the plaintiff? 

This is a tough and interesting question.  It is currently an issue of great contention in the courts.  Since the law developed in the context of defamation on the Internet, a brief foray into defamation law is in order.  Suppose a columnist for a newspaper says a falsehood about a person that harms her reputation.  The newspaper can be liable for publishing the columnist’s statement.  In certain circumstances, distributing a defamatory publication can be grounds for liability.  The owner of a bookstore or newsstand, for example, can be liable as a “distributor” if she (or her employees) knew or had reason to know about the defamatory statement in the newspaper.  When a person posts a statement on an ISP’s online forum, is the ISP a “publisher,” “distributor,” or neither? 

As part of the Communications Decency Act (CDA) of 1996, Congress passed § 230, which provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. §230(c)(1).  This provision clearly means that ISPs cannot be liable as “publishers” of information posted by a user.  This provision can also be interpreted to apply to the host of a blog for comments posted by others.  Suppose that somebody posts a defamatory comment about somebody on PrawfsBlawg.  We happy folks at PrawfsBlawg would not be deemed to be “publishers” of that comment. 

The tricky issue, however, is whether we could ever be liable as “distributors.”  Suppose the poor defamed person in the comment emailed us and said: “Please take down that comment by Anonymous Reader.  It falsely accuses me of committing a crime.”  Such an email would put is in quite a quandary.  Do we now know or have reason to know that the comment is defamatory?  Is this email enough to give us knowledge?  And if we are determined to have known that the comment was defamatory, does § 230 immunize us? 

For a long time, the leading case on this question was Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).  About a week after the Oklahoma City bombing, an anonymous person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-Shirts” making jokes about the bombing.  The message said interested people should call “Ken” at Kenneth Zeran’s home phone number.  Zeran received tons of calls and death threats.  He couldn’t change his home number because he used it for his home business.  Zeran called AOL and asked for the posting to be removed.  AOL said it would remove the posting but then dilly-dallied.  The anonymous poster continued to post more about Zeran.  Zeran repeatedly called AOL to take down the material and to block the anonymous party from posting – but to no avail.  Finally, after quite a while, AOL removed the posting.  Unable to locate the identity of the anonymous poster, Zeran sued AOL for defamation as a distributor. 

The 4th Circuit threw out Zeran’s claim, holding that AOL was immune from liability even as a distributor under § 230.  Note that § 230 uses the words “publisher or speaker” not “distributor.”  Nevertheless, the court reasoned that distributor liability was covered under § 230 because it was merely a subset of publisher liability.  The court also noted that retaining distributor liability would have a chilling effect on speech.  People could notify ISPs, which would simply take down the material (even if it weren’t tortious) to avoid potential liability.

Recent cases in California, currently under review at the California Supreme Court, reject Zeran’s conclusion.  In one of these cases, Barrett v. Rosenthal, 5 Cal.Rptr.3d 416 (Cal. Ct. App. 2003), the court reasoned:

. . . [W]e also think it debatable whether notice liability would actually have an unduly chilling effect on cyberspeech. Neither the record before us nor any other information brought to our attention provides an answer to that question.  Moreover, the speculative conclusion of the Zeran court that exposing Internet intermediaries to knowledge‑based liability would significantly chill online speech is disputed by the speculations of other authorities. . . .

It is also asserted that by ignoring how difficult it is for a plaintiff to prevail on a defamation claim or receive significant money damages, the Zeran court overstated the danger such claims present to Internet intermediaries, and therefore also exaggerated the danger they would engage in excessive self‑censorship. . . . First of all, it must be shown that an alleged defamation is not an opinion or satire or mere hyperbole but an assertion of actual fact, and even then knowledge and the requisite degree of fault must be shown.  Furthermore, if the defamation relates to a public figure or matter of public concern, as will often be the case, the intermediary would also have to be shown to have acted with actual malice, which is usually extremely difficult. . . . Finally, in California and other jurisdictions that have an anti‑SLAPP statute such as ours, defendants in unmeritorious defamation actions need not even answer the complaint and can obtain quick dismissal and their attorney fees.

Back to the Yahoo! case.  There’s a decent defamation claim against the boyfriend, since through posing as the plaintiff, he created harmful falsehoods about her.  There’s also a good claim for public disclosure of private facts for disclosing the nude photos.  One open issue is whether § 230 applies to the privacy torts or just to defamation.  Section 230 uses defamation law language, but its purpose in protecting ISPs and the operators of online forums might suggest that it applies more broadly. 

The case also raises some very thorny issues.  If Yahoo! or bloggers like us can be liable if, after being informed, we fail to remove a comment that is defamatory or invasive of privacy, then will we become over-cautious in removing comments?  This will have a negative impact on speech, because if a person doesn’t like a comment about herself, even if true and not tortious under the privacy torts, folks like us might be extra careful and remove it in order to avoid a lawsuit.  The result would be a kind of heckler’s veto, where a person could have a comment removed by complaining about it, whether justifiably or not.

On the other hand, if Yahoo! or us bloggers ignore a person’s complaints about harmful comments, then that person might be without much recourse.  Shouldn’t Yahoo! have removed the photos?  This seems like an awful situation for the plaintiff – nude photos of herself are placed on the Internet and she is helpless in removing them.  Is there such a big harm in forcing Yahoo! to remove them?  Shouldn’t people have some ability to halt the distribution of falsehoods or nude pictures or other personal information about themselves on the Internet? 

Tags: privacy

Posted by Daniel Solove on June 5, 2005 at 08:05 PM in Daniel Solove, Information and Technology | Permalink | Comments (2) | TrackBack

Saturday, June 04, 2005

Google Never Forgets

Google_1

A recent CNN article reports:

When Google Inc.'s 19 million daily users look up a long-lost classmate, send e-mail or bounce around the Web more quickly with its new Web Accelerator, records of that activity don't go away. . . .

Like many other online businesses, Google tracks how its search engine and other services are used, and who uses them. Unlike many other businesses, Google holds onto that information for years.

Should Google delete the personal information it collects after a period of time? 

Posted by Daniel Solove on June 4, 2005 at 03:08 AM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Thursday, June 02, 2005

Conservative Scholars on the Most Harmful Books of the 19th and 20th Centuries

What is the most harmful book of the past two centuries as judged by a group of 15 conservative “scholars and public policy leaders”?   Is it Hitler’s Mein Kampf?  No.  It’s Marx and Engels’s The Communist Manifesto.  According to Human Events, "the national conservative weekly":

HUMAN EVENTS asked a panel of 15 conservative scholars and public policy leaders to help us compile a list of the Ten Most Harmful Books of the 19th and 20th Centuries. Each panelist nominated a number of titles and then voted on a ballot including all books nominated. A title received a score of 10 points for being listed No. 1 by one of our panelists, 9 points for being listed No. 2, etc.  Appropriately, The Communist Manifesto, by Karl Marx and Friedrich Engels, earned the highest aggregate score and the No. 1 listing.

Not only did The Communist Manifesto beat out Mein Kampf, but it did so by an enormous margin, scoring a 74 to Mein Kampf’s 41. 

Communistmanifesto_2

The judges of this rather perturbing list are Arnold Beichman (Hoover Institution); Prof. Brad Birzer (Hillsdale College); Harry Crocker (Regnery Publishing, Inc.); Prof. Marshall DeRosa (Florida Atlantic University); Dr. Don Devine (American Conservative Union); Prof. Robert George (Princeton University); Prof. Paul Gottfried  (Elizabethtown College); Prof. William Anthony Hay (Mississippi State University); Herb London (Hudson Institute); Prof. Mark Malvasi (Randolph-Macon College); Douglas Minson (The Witherspoon Fellowships); Prof. Mark Molesky (Seton Hall University); Prof. Stephen Presser (Northwestern University); Phyllis Schlafly (Eagle Forum); and Fred Smith (Competitive Enterprise Institute).

The full list of books:

1. Marx and Engels, The Communist Manifesto

2. Hitler, Mein Kampf

3. Mao Zedong, Quotations from Chairman Mao

4. Kinsey, The Kinsey Report

5. Dewey, Democracy and Education

6. Marx, Das Kapital

7. Friedan, The Feminine Mystique

8. Comte, The Course of Positive Philosophy

9. Nietzsche, Beyond Good and Evil

10. Keynes, General Theory of Employment, Interest and Money

It is hard for me to describe this list without using words like “ridiculous” and “disturbing.”  But the list of honorable mentions leaves me speechless.  Among those books receiving honorable mentions are Mill’s On Liberty,   Darwin's Origin of the Species,   and Freud’s Introduction to Psychoanalysis.  There you have it.   

Thanks to LuminousVoid for the pointer.

Posted by Daniel Solove on June 2, 2005 at 06:14 PM in Books, Current Affairs, Daniel Solove | Permalink | Comments (11) | TrackBack

Tuesday, May 31, 2005

The New Bluebook (18th Ed): Rush to Get Your Copy

Bluebook18_1

The new 18th edition of The Bluebook is out!  I can hardly contain my excitement!  I haven't obtained my copy yet (actually, I haven't used The Bluebook since law school), but this edition promises a “bold new look and a colorful, user-friendly design.”  It also has “attractive new fonts.”  Wow!  I might just have to get a copy.   

The Bluebook’s website says:

The Bluepages, new to the Eighteenth Edition, is a how-to guide for basic legal citation. Unlike the remainder of The Bluebook, which is designed in a style and at a level of complexity commensurate with the needs of the law journal publication process, the Bluepages provides easy-to-comprehend guidance for the everyday citation needs of first-year law students, summer associates, law clerks, practicing lawyers, and other legal professionals.

Apparently, The Bluebook really consists of two citation guides for the price of one – a Bluebook for the law journals and one for the rest of the world which is assumed to be too stupid to operate at the “level of complexity commensurate with the needs of the law journal publication process.” 

Another goodie from the website:

Rule 18 (Electronic Media and Other Nonprint Resources) has been almost completely rewritten to account for increasing use of Internet citation. Major changes include the categorization into two kinds of Internet citations (direct and parallel), the expanded use of analogy in Internet citation, and the addition of citation formats for blogs.

Of course, just one kind of Internet citation won’t do, so more must be created.  By the next edition, I expect at least a dozen different kinds of Internet citation.  And there’s a new citation format for blogs.  It is interesting that blogs are beginning to be cited in law review articles.  I didn’t believe this at first, but my colleague Orin Kerr showed me numerous instances of articles citing to Volokh Conspiracy posts.  Now that there’s a citation format for blog entries, please cite my blog posts with frequency and gusto. 

I’ve always found The Bluebook to be an odd creature of the legal profession.  First of all, students decide the citation formats that are used by professors, lawyers, and judges.  Second, The Bluebook is an ever-growing system of rules.  It is designed to be complicated.  If the system were simple, then there would be little need for The Bluebook, as people could readily learn it.  Perhaps all that would be needed would be a blue pamphlet.  So the system is filled with complex rules that create tremendous busy work among student law review editors, who have the laborious task of making professors’ citations comply with these arcane rules.  (Most professors only loosely follow the format, based on their fading memories of the rules, because they know that law review editors will diligently do the work.) 

Additionally, The Bluebook requires many needless footnotes and parentheticals that add nothing much of value.  Common sense would suggest a system of citation that just made sure that essential information about sources were included so that a reader would know how to find them.  But, alas, lawyers crave rules.  If The Bluebook didn’t already exist, it would have to be invented.      

 

Posted by Daniel Solove on May 31, 2005 at 11:06 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (7) | TrackBack

Continuity Errors, Sci-Fi Movies, and Judicial Decisions

Starwarscomic_1Dworkin_1

Todd Seavey has some interesting observations on consistency of fictional universes, such as Star Wars and Star Trek.   After Star Wars Episode III recently came out, many fans lamented the contradictions and inconsistencies between the six Star Wars movies, myself included.  Here is a taste of some of Seavey’s observations, which, as I will explain later, have some interesting parallels to judicial decisionmaking:

The fictional universes depicted in movies like the Star Wars or Star Trek series tend to get very complex. . . . That complexity means that—inevitably—the occasional “continuity error” occurs. In normal movie parlance, a continuity error means one of those embarrassing moments when, say, the bandage on an actor moves from the right hand to the left hand between scenes due to a mistake by the makeup department. For science fiction fans, though, continuity refers to the overall logical and historical coherence of our beloved fictional universes.

For you see, any story must have a certain amount of internal coherence if we are to achieve suspension of disbelief. And we must achieve suspension of disbelief. . . . It is only the grandeur and majesty of a fictional universe the size and complexity of one like the Star Wars universe, the Star Trek universe, the DC Comics universe, or the Marvel Comics universe (and perhaps soap operas) that is truly difficult to maintain.

Perhaps this is why it irks fans so much when so many obvious continuity errors pop up in the Star Wars films. 

Continuity is also critical to the judicial decisionmaking process, as we have a system of precedent, where courts aim to achieve a consistency in judicial opinions which are written by different people over different time periods.  Ronald Dworkin’s chain novel theory comes to mind.  In A Matter of Principle (1985), he writes:

Suppose that a group of novelists is engaged in a particular project and that they draw lots to determine the order of play.  The lowest number writes the opening chapter of a novel, which he or she then sends to the next number, who adds a chapter, with the understanding that the is adding a chapter to that novel rather than beginning a new one, and then sends the two chapters to the next number, and so on.  Now every novelist but the first has the dual responsibilities of interpreting and creating because each must read all that has gone before in order to establish, in the interpretivist sense, what the novel so far created is. (p. 158)

Dworkin then analogizes this chain novel exercise to judicial decisionmaking:

Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history into the future through what he does on the day.  (p. 159)

It’s time to return back to Seavey on sci-fi movies:

Yet sometimes the editors and writers responsible for such series barely care about maintaining continuity, so busy are they with more mundane tasks such as writing entertaining dialogue and coming up with interesting new characters. That is why such universes desperately need the obsessive, crank-like fan, the fan willing to concoct rationalizations that make sense of the apparent continuity errors. Indeed, without such fans, I question whether the continuity of these universes could be maintained at all. The fate of entire fictional worlds, the very cohesion of the space-time continuum, hinges on the selfless efforts of fans like myself to keep track of what the hell is going on and explain the slip-ups by the so-called “professionals”!

What if we carry the analogy back to judicial decisions?  Are we law professors like the “obsessive, crank-like fan, the fan willing to concoct rationalizations that make sense of the apparent continuity errors”? 

Perhaps Star Wars does have something to contribute to legal theory after all. 

Thanks to Xeni Jardin at BoingBoing for the pointer.

Posted by Daniel Solove on May 31, 2005 at 04:22 PM in Daniel Solove, Legal Theory | Permalink | Comments (1) | TrackBack

Law and Society Conference

Tomorrow, I’m off to Las Vegas for the Law and Society conference, so I’ll probably be doing very little blogging for the rest of the week.  If you hear from me, it will be because: (1) there’s an absolutely amazing bloggable issue I discovered and I can’t contain my excitement and wait; or (2) I’m bored in Vegas, at which point, there’s something seriously wrong with me. 

At the conference, I will be participating in an “author meets reader” panel in which a bunch of professors will be commenting on my book, The Digital Person.  Besides myself, the panel will include Neil Richards, Joel Reidenberg, Orin Kerr, and Gaia Bernstein.  After four critiques of my book, I hope that there’s a back door to the room so I can quietly slip out.  I think it will be an interesting panel, and I hope I survive the experience.  If you’ll be at the conference, stop by and say hello.  In another version of “author meets reader,” it would be nice to meet some readers of this blog, at least to confirm that somebody somewhere is reading my posts.

Posted by Daniel Solove on May 31, 2005 at 01:46 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (0) | TrackBack

It's the Circuit Courts that Matter

We still pay a lot of attention to the Supreme Court, despite the fact that it hears only 80 cases a year, of which only a small fraction are controversial and effectuate a significant legal change.  At the federal level, the courts with the most significant power are the circuit courts.  Consider this from a recent Knight-Ridder article:

The Supreme Court under Chief Justice William H. Rehnquist has been intervening in only about 80 cases each year, down from about 150 a year two decades ago, leaving tens of thousands to be decided by appeals courts that are increasingly shaping the nation's laws.

"The appeals courts are critical decision-making bodies on a range of issues," said Thomas Mann, a senior fellow at the Brookings Institution. "As the Supreme Court takes fewer and fewer cases, the appeals courts are more frequently having final say. Both sides know this, so it forms the backdrop for the entire fight."

Also in the background, experts say, is the overwhelming Republican dominance of the appeals courts, thanks to five Republican presidencies over the past three decades versus two Democratic ones. Republican-appointed judges now hold majorities on 10 of the 13 appeals courts, and the pace of appointments is accelerating as new seats are created and other judges retire. In five years in office, for example, President Bush has managed to appoint a majority of the judges who now sit on the 8th Circuit Court of Appeals in St. Louis.

With a potential appointment looming, most eyes are on the Supreme Court.  But the circuit courts, by and large, have the de facto final say for most cases and legal issues.   And as the article points out, Republican-appointed judges are in the majority in 10 out of 13 circuit courts. 

As the judiciary grows more conservative, I wonder whether liberal and conservative scholars will retool their positions on judicial review or the role of the courts.  Inspired by the Warren Court, liberals sought to justify robust judicial review.  Conservatives pushed for judicial restraint and attacked the legitimacy of judicial review.  (These are broad generalizations of course.)  But the courts have a very different complexion today, and I wonder whether liberal and conservative positions on judicial review will start to shift soon. 

Posted by Daniel Solove on May 31, 2005 at 12:43 PM in Daniel Solove, Law and Politics | Permalink | Comments (4) | TrackBack

Monday, May 30, 2005

Why I Write

There have been many interesting posts about what motivates us law professors to write.  The discussion was created here, on this blog, by Paul Horwitz.  Orin Kerr writes to work through a tough problem or make the world a better place (further thoughts here).  Eric Muller writes for fulfillment. Michael Froomkin notes several reasons, such as furthering an understanding of an issue, sharing a cool idea with others, replying to a critic, suggesting social reforms, or being required to in order to participate in a conference.  Michael Madison writes to share ideas with others.

I agree with all of the reasons mentioned above, but for me, the thing that most invigorates me about writing is the creative process.  I write because I like creating things and because it gives me joy (and some candy for the ego) when my work has an impact on others.  It’s great when people agree, but I even enjoy when people disagree – at least I’ve started an interesting conversation.  In other words, I like creating things, launching them into the world, and watching what they do. 

If I could paint, I’d paint.  If I could write novels, I’d write novels.  But I believe that I’m better able to write about the law than create paintings or novels.  And I’m too old to be making Lego creations . . .  well, I guess you can never be too old, but it’s just not a realistic way to make a living.  

Posted by Daniel Solove on May 30, 2005 at 03:58 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (1) | TrackBack

How Many Blogs Are There? How Many Read Them?

Carl Bailik has an interesting article in the Wall St. Journal (no registration required to read this article) about measuring the importance and impact of blogs.   The basic point of the article is that calculating the number of blogs and blog readers is fraught with peril:

The numbers of the blogosphere range widely. Are there 10 million blogs, or 32 million? Do a quarter of online Americans really read blogs, as one oft-cited survey found? And why do rankings of the most popular blogs vary so much?

Adding to the confusion: disagreement over exactly what a blog is. In our young era of blogging, there's still no consensus. "Blog" derives from "Web log," and everyone agrees that a blog should be regularly updated, with new entries in reverse chronological order -- and that the entries can be about anything. But millions of people establish blogging accounts with free software providers like Google Inc.'s Blogger, Microsoft Corp.'s MSN or Six Apart Ltd.'s LiveJournal -- it takes mere minutes -- and then never post to their blogs. Others password-protect their blogs and use them to share photos and data with a small group of family members, friends or colleagues. Whether or not you count all those represents a big chunk of the swing from 10 million (cited recently in the New York Times and USA Today) to 31.6 million blogs (Ottawa Citizen and the Ann Arbor News). Both are world-wide estimates.

Bailik contends that the number of blogs is not a meaningful statistic because many are abandoned after they are launched (such as a blog I started back in March and abandoned after just two posts).  Bailik then turns to counting blog posts statistics, with Technorati estimating about 800,000 to 900,000 blog posts a day and BlogPulse estimating about half that amount -- 350,000 to 450,000 per day.  Bailik writes:

The total number of active blogs -- those with a post in the past 30 days -- was 3.5 million on May 1, according to BlogPulse. That was up just 30% from last September, even as the site found that the total number of blogs increased nearly 200% over that time. That suggests there's a lot of dead air out there. 

But the number of blogs doesn't say a lot about the relevance of blogs.  Bailik turns to calculating the number of people who read blogs.  A Pew poll has 25% of Internet users saying they read blogs, but Bailik points to reasons why this statistic may be dubious.  If one were to rely on the 25% statistic:

Multiplying the results with Pew's estimate for the total number of Americans online yields an estimate of about 32 million American adults who read blogs.

What about measuring the popularity of particular blogs?  One method is to count links to a particular blog, "but this measure fails to take into account the prominence of the site doing the linking."  Another method is to count visitors to the blog, but total visits does not capture "unique visitors" which is "the standard currency for many kinds of online advertising (advertisers don't want to pay twice to reach the same reader)."

I believe that statistics about the total number of blogs or blog readers are not very helpful.  Stats about the readership of particular blogs can be quite helpful, as right now, it is a small group of the blogs out there that are gaining a sizeable audience.  The WSJ article focuses mainly on how advertisers might view the statistics, but in terms of influence, I believe that total visits is an important stat.  If people are visiting a blog routinely throughout the day, it measures the fact that the blog is of great interest to these visitors.  Unlike the mainstream media, blogs are more interactive, where readers can post comments and have discussions.  Debates occur between different blogs.  In short, blogs are more akin to an ongoing conversation than a mainstream media publication or broadcast, so perhaps trying to calculate similar statistics (total readership) will not tell the whole story.  Perhaps the best statistic would be finding out from people how often they read blogs, which blogs they are reading, and how meaningful they consider blogs to be are in their lives.   (Thanks to beSpacific for the pointer.)   

Posted by Daniel Solove on May 30, 2005 at 11:31 AM in Blogging, Daniel Solove | Permalink | Comments (0) | TrackBack

Brian Tamanaha on Problems with Instrumental Views of the Law

Brian Tamanaha (law, St. John’s), has written a provocative article called The Perils of Pervasive Legal Instrumenalism.  He observes that "[a]n instrumental view of law--the idea that law is an instrument to achieve ends--is taken for granted in the United States, almost a part of the air we breathe."  Such a view, however, creates a serious problem:

[I]n situations of sharp disagreement over the social good, if law is perceived as an instrument, individuals and groups within society will endeavor to seize the law, and fill in, interpret, and apply the law, to serve their own ends. What results is a contest over law itself, a contest in which all sides seek to enlist the power of law on their behalf, spawning a Hobbsean conflict of all against all carried on within and through the legal order.

Tamanaha observes that one of the dangers is “that a judge would cross over from abiding by the binding quality of law, sincerely trying to figure out what the law requires (however unclear), to instrumentally manipulating the legal rules to reach a personally desired end, much as a lawyer does in service of the client. . . Most every case they decide will be what they personally prefer, to further the aims of the groups that support them, notwithstanding what the law says.  This is no longer a system in which the legal rules have any binding effect on judges.  It would no longer be a system of law.”

Tamanaha notes that the Realists would be “aghast at the scene today. . . . The Realists understood that legal rules have a built in binding, non-instrumental aspect which defines them as law . . . Despite their intentions, the implications of the ideas they espoused may turn out to undermine the binding quality of law.” 

Tamanaha raises some very provocative questions.  He doesn’t purport to suggest the answers, but his questions are worth serious thought. 

However, I do have some important disagreements with the paper.  At the end, Tamanaha argues that “[t]he legal Realists were progressive law reformers who wanted to stop formalist judges from erecting barriers to the social welfare state. . . . The Warren Court tried to bring about greater social justice, but they generated a backlash both in the political and judicial arena in which the progressive values they supported are now threatened by a conservative judiciary.”  Further, he contends: “If a mistake was made in the critical attacks of reformists, it was that, in the pursuit of victory, their attacks went too far.  Their attacks were wholesale, taken to an extreme.” 

This strikes me as a description that might fit the CLS movement, but it is hardly apt for the Legal Realists or Warren Court.  Neither the Realists nor the Warren Court engaged in an “all-out destructive attack” and neither neglected to seek to “construct new foundations.”           

Additionally, I take issue with his characterization of legal pragmatism. 

Tamanaha notes the divergence of substantive viewpoints among legal pragmatists such as Richard Posner, Morton Horwitz, Martha Minow, Margaret Radin, and Mari Matsuda and contends that “[t]his convergence on pragmatism . . . did not reflect a sudden reconciliation among contesting views.  They remained as far apart as ever in their substantive vision.  The very fact of this convergence confirmed what had been a source of criticism early in the Century: pragmatism is empty with respect to ends, offering no particular guidance or values.” Tamanaha goes on to observe:

The popularity of pragmatism was short-lived, for it was not evident what insight, if any, pragmatism offered to law.  Pragmatic philosophy was primarily a negative critique of absolutist theories of truth.  When Pound, Dewey, and the Realists invoked pragmatist thought in the legal context in the early 20th Century they were combating prevailing non-instrumental views of the law as abstract principles that were applied in a logical fashion with no attention to social consequences. Pragmatism had real bite then. By the 1960’s and 1970’s, as indicated, a pragmatic approach to law reigned and legal instrumentalism was “the ordinary religion of the classroom.” It is routine for judges today to consider the social consequences of their decisions. Philosopher Richard Rorty concluded that pragmatism in law today is “banal,” as its insights have already been absorbed. 

In Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism, Prof. Michael Sullivan (philosophy, Emory) and I argue that Posner’s view of pragmatism does indeed fit Tamanaha’s description.  But we also argue that Posnerian legal pragmatism diverges significantly from the views of the classical pragmatists, which we contend were hardly banal and went far beyond being merely a critique of absolutism:

Posner views ideals as useless and philosophical theorizing as empty. Lacking any meaningful approach for scrutinizing social goals, pragmatism thus devolves into an efficiency exercise. The task of the pragmatist becomes merely finding the appropriate means to achieve our given ends. While this search for means may take a critical form, Posner’s account has little to say about the selection of ends. Accordingly, his attack on abstract ideals becomes, in effect, an endorsement of such ideals, since it leaves unreconstructed the dominant moral ideals of present society.

It is not surprising, therefore, that in his theory of democracy, Posner is not interested in promoting methods for the community to develop shared ideals. Rather, the pressing need is for a set of elite managers to serve as efficiency experts, whose goal is to find the most efficient means to achieve our inherited ends. Posner’s view has significant consequences for thinking about the nature of democratic community. Since people are not encouraged to make any effort to form a community on the basis of shared ideals, the dominant normative ideals of society are left to drift haphazardly. Society becomes little more than the collective actions of atomistic individuals. Thus, as with the market, Posner views the equilibrium that emerges from individuals who pursue their own private interests as sufficient to generate the larger social ethos.

Posner’s pragmatism, having eschewed attempts to evaluate ends critically and having effectively pronounced its agnosticism about community ends, leads naturally to a vision of democracy as principally an efficient mechanism for dispute resolution. This vision of democracy is conservative not only because it privileges the inherited demands of the present, but even more because it rules out as misguided the projects of reconstructing community identity through public deliberation. In contrast, the pragmatism of the early pragmatists, especially Dewey, encourages us to approach our present problems more radically. We should subject both means and ends to critical inquiry and empower communities to engage in self-formation by reconstructing the settled habits and ideals that constitute the status quo. For Dewey, “The end of democracy is a radical end. For it is an end that has not been adequately realized in any country at any time. It is radical because it requires great change in existing social institutions, economic, legal and cultural.”

Posner is right in his general view that pragmatism has much to offer to law, as well as to democracy. Its contribution, however, is not a rejection of philosophical theory but a transformation of how we relate theory to practice. Far from being banal or timorous, far from accepting our current practices and institutions as given realities, pragmatism subjects them to criticism and reconstruction. . . .

Sullivan and I argue that pragmatism need not be a neutral method, empty as to ends:

Pragmatism refuses to accept on face value claims about methods being “neutral.” Rather, pragmatism recognizes that our critical investigations are infused with value commitments. No neutral determination is possible. Under this account, the point of philosophy is less a matter of securing objective truth and more a matter of facilitating effective growth in the face of particular problems. Pragmatism is not a method purified of experience. Pragmatism does not start out from some Archimedean point; it begins with commitments, which have certain valences. Pragmatism asks particular kinds of questions and suggests we abandon other types of questions. . . .

While Posner’s thin account of pragmatism seems insufficient for generating substantive ends, a thicker account of pragmatism recommends that a community pragmatically reconstruct its ends. On this thicker account, democracy and pragmatism go hand in hand. As Hilary Putnam observes, for Dewey democracy was “not just a form of social life among other workable forms of social life; it is the precondition for the full application of intelligence to the solution of social problems.” Certain characteristics of democracy facilitate the community’s engaging in pragmatic inquiry about the future shape of its democracy. Pragmatic inquiry enables a community to make itself more democratic. Pragmatism and democracy are thus mutually reinforcing. . . .

Pragmatism is not neutral, and although pragmatism does not strongly lead to a specific and detailed set of ends, it does have valences.  We contend:

In order to ask what political future does pragmatism recommend?, we must also ask in what political culture can pragmatic forms of inquiry about the political future best be carried out? The answer to this latter question leads us in the direction of what we call a “general democratic culture.”

First, . . . pragmatism subjects existing institutions and the status quo to ongoing critique, since it recommends that we critically examine our ends. When one commits oneself to a thoroughgoing use of pragmatic method, certain conclusions are ruled out in advance, such as a politics informed by supernatural or transcendental ideals, or a politics that arbitrarily excludes particular viewpoints. Supernaturalism and absolutism conflict with the general approach of the pragmatic method, which is to subject our ideals, ends, and conclusions to the test of experience. Indeed, it is this commitment that in part motivates Posner’s rejection of philosophical theory, for much philosophical theory has traditionally harbored ideological commitments that were then foisted upon the unaware from the altar of theory. But the fear of ideology can lead to cures that are worse than the disease. Although Posner claims to adhere to a neutral pragmatic method without political valences, the results of his application of this method are deeply ensconced in ideology. Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo. The result is that while Posnerian pragmatism rejects supernaturalism and absolutism, it starts with an unquestioning acceptance of current institutions. Ironically, it winds up in a similar posture to supernaturalism and absolutism, for in each of these instances certain issues are insulated from critical scrutiny. . . .

. . . [I]n contrast to Posnerian pragmatism, the account of pragmatism we offer openly acknowledges that it is not completely neutral. Although pragmatism does not point to precise resolutions for our debates, it does send us in a particular direction based on the types of questions it recommends we investigate. It puts on the table for debate a wide range of issues, especially the identity of a community and its ends. It requires dialogue, for the task of determining a community’s ends cannot be achieved without communication. And it relies on the participation of the community, not merely upon a group of elites who impose their own ends upon the community. . . .

Therefore, while Tamanaha has diagnosed a significant problem with many current instrumentalist views of the law, the problem is created by certain kinds of instrumentalist theories of law, not by instrumentalism in general.  This might appear to some to be a subtle distinction, but I believe that it makes all the difference in the world. 

Far from abandoning an instrumentalist view of the law, the answer lies in a richer understanding of legal instrumentalism beyond the simplistic and dead-end accounts that are currently pervasive.  The answer, I believe, is to return to the project begun by the philosophical pragmatists (such as John Dewey and William James) and the Legal Realists (who were heavily influenced by the pragmatists).  Their project ought to be revisited, as it need not necessarily lead to Tamanaha’s stark vision of legal instrumentalism today.  In fact, a return to exploring the ideas of the pragmatists and Realists might show us the different paths instrumentalist theories of law can lead to, and how we might move from the path we’re on to a better more productive path.  

Disagreements aside, Tamanaha’s article is quite thought-provoking, and he is asking essential questions about the future of legal theory and of law in general.

Thanks to Larry Solum for the pointer.

Posted by Daniel Solove on May 30, 2005 at 03:52 AM in Article Spotlight, Daniel Solove, Legal Theory | Permalink | Comments (0) | TrackBack

Saturday, May 28, 2005

Justice Brandeis and Yoda

Eugene Volokh explains the connection over at the VC. 

Posted by Daniel Solove on May 28, 2005 at 11:10 AM in Daniel Solove, Film | Permalink | Comments (0) | TrackBack

Friday, May 27, 2005

Further Thoughts on Abolishing the Bar Exam

I received many thoughtful comments on my earlier post about abolishing the Bar Exam.  Most of the arguments for retaining the Bar Exam involve the need for erecting a barrier to attorneys being licensed. 

Hardly any of the Bar Exam supporters contend that the Bar Exam is a good metric for merit as an attorney.  If we want to block people from becoming lawyers, there are many ways to do it, but why use a test that doesn't do a very good job of it?  If we want a barrier, why not make applicants go through an obstacle course?  Or have a silly competition in something?  The Bar Exam is a hurdle that mainly functions as a hurdle, not as a meaningful way to distinguish competence from incompetence.  Passing the Bar Exam reflects at best: (1) whether you have enough money to pay for BarBri; (2) whether you have a decent memory to remember the rules; (3) whether you are willing to waste many hours studying.  The Bar Exam doesn't test legal thinking; the rules it tests on are not useful to the practice of law or much of anything else. 

Over at Conglomerate Blog, Christine Hurt notes that Wisconsin allows students from Marquette or U. Wisconsin to be admitted to the Bar without taking the exam.  However, she writes in favor of a Bar Exam requirement:

I wish that Wisconsin had a bar exam requirement, although that wish may be because other states do.  As Dan Solove pointed out, bar exams inhibit the movement of lawyers in and out of states.  Being almost the only state that does not require a bar exam has the reverse effect of inefficiently retaining and attracting lawyers to Wisconsin.  I think that the absence of a bar exam heavily weights in favor of our graduates staying in Wisconsin rather than venturing out and seeing the country.  Of course, Wisconsin has a lot to offer a lawyer, but so do other places.

The absence of a bar exam also shifts the role of "barrier to entry" back to the law school, which is not an easy role for law schools to play these days in the competitive law school market.  If either Marquette or Wisconsin took up the role of keeping 10% of all prospective attorneys out of the market, then we would find ourselves losing applicants.

This argument, like many others, is to praise the Bar Exam simply because it is a barrier.  I strongly disagree with Christine about the Bar Exam serving as a better barrier than law schools.   Some students spend three years of their lives and go into massive debt only to be stopped from practicing law by failing to pass the Bar Exam.  This is not where the barrier should be, at the end of such a long and expensive commitment for students. 

In a thoughtful post, Paul Horwitz writes: "[E]ven if for non-invidious reasons, entry barriers will -- and likely should, if they are aimed at quality control rather than maintenance of guild privileges -- remain.  The bar exam does some things well, and can be a reasonable quality control." 

I query whether the Bar Exam does anything well.  It is not a test of legal reasoning or skill; it is simply a test of whether one has remembered the rules. 

In the end, the fact that the Bar Exam serves as  a barrier does not strike me as a valid reason to exclude people from the practice of law unless it functions as a meaningful barrier.  It doesn't.  To the extent it correlates to effort in studying or memory or standardized testing skills, I'm not sure that these are the best skills that we should be looking for in members of the profession.  And also consider that there is not a large social benefit to all the hours that people expend studying for the Bar Exam.  All the hours spent on the Bar Exam could be used for a more productive purpose, such as helping people in need. 

Posted by Daniel Solove on May 27, 2005 at 05:37 AM in Daniel Solove, Life of Law Schools | Permalink | Comments (24) | TrackBack

Thursday, May 26, 2005

Tallying Up the Data Security Breaches

The Privacy Rights Clearinghouse has tallied up all of the data security breaches that have been announced following the ChoicePoint security breach back in February.  It has created a very helpful chart of the breaches (there are about 30 in all).  The chart indicates when each occurred; the company, organization, or agency involved; how each breach occurred; and the number of people affected.  The total number of people whose personal information was compromised is 5,476,150.  Wow!      

Posted by Daniel Solove on May 26, 2005 at 12:36 PM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Ranking Bloggers

As if we needed another ranking system, along comes this website, which has categorized bloggers into an A-list, B-list, and C-list.  For example, Eugene Volokh of the Volokh Conspiracy is on the B-list.  Other bloggers on the VC don't even make any list (sorry Orin).  And nobody from PrawfsBlawg . . . outrageous!  I searched in vain for some kind of criteria for these lists, but there appears to be none.  The whole thing seems to be a way to drum up interest for a magazine about blogging.    Instapundit (Glenn Reynolds) writes: "THIS IS A PARAODY, RIGHT? Please let this be a parody."  Glenn Reynolds, FYI, is an A-lister. 

Posted by Daniel Solove on May 26, 2005 at 10:01 AM in Blogging, Daniel Solove | Permalink | Comments (3) | TrackBack

Wednesday, May 25, 2005

Abolish the Bar Exam

Despite my enjoyment of the Bar Exam as a work of jurisprudence, I believe that the Bar Exam should be abolished.  It prevents mobility among lawyers, making it cumbersome and time consuming to move to different states.  It does not test on actual law used in legal practice, but on esoteric legal rules, many of which are obsolete, and most of which are of absolutely no value to a practicing attorney or to anyone for that matter.  In short, the Bar Exam is an unproductive waste of time.

My guess is most all lawyers would agree. So why does the Bar Exam persist? 

Perhaps as a way for states to restrain competition among lawyers . . . but this would be an impermissible purpose.  Perhaps inertia.  Perhaps because of the “we suffered, now you must suffer too” mentality.  I can’t think of good reasons for retaining the Bar Exam.  Yet this misery-creating, time-wasting ritual survives -- even thrives -- despite the fact that it has no valid justification and has achieved near universal enmity. 

In lieu of the Bar, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain amount of supervised pro bono hours.  All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers.  I think that this is much better than wasting most of a summer studying for a meaningless test. 

Posted by Daniel Solove on May 25, 2005 at 01:01 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (66) | TrackBack

Monday, May 23, 2005

How Credit Reporting Agencies Are Scamming the Free Credit Report Requirement

This year, pursuant to the Fair and Accurate Credit Transactions Act (FACTA) of 2003, credit reporting agencies must provide people with one free credit report per year.   This is gradually being phased in this year.  People can obtain their reports from this website: https://www.annualcreditreport.com/cra/index.jsp.

Earlier this year in his blog, law professor Eric Goldman discussed the difficulties and inconveniences he experienced when attempting to obtain his report.

But most disturbingly, MSNBC reporter Bob Sullivan writes:

An independent research firm has found that there are dozens of Web sites with names like My-Free-Credit-Report.com which claim to offer free reports, but instead steer consumers to sign up for subscription-based services sold by credit bureaus.  Often, these paid sites are easier to find than the Congressionally-mandated site, AnnualCreditReport.com.

One might expect such crude exploitative practices from low-life companies or fraudsters.  But no. . . These websites are linked to two major credit reporting agencies: 

For example, visitors to Google’s search engine who type in “free credit report” get a list of links for Web sites that ultimately sell services from Experian and Trans Union. AnnualCreditReport.com, the only place to get a free credit report, doesn’t make the first page of search results. 

Javelin Strategy & Research, which conducted the study, said it found 16 so-called "free credit report" sites connected to Experian and nine to Trans Union.  Javelin found no such sites connected to the third bureau, Equifax.

At ConsumerInfo.com, an Experian site, visitors get the message “Free! Free! Free!  Get your FREE Credit Report Online in Seconds!!!” But clicking on “Free report” sends users to a sign-up page. At the bottom of that page, in small print, is the message that a credit card is required and a fee will be charged.

“The low monthly fee of $9.95 will automatically be charged to your credit card after the trial period ends. What a small price indeed for financial peace of mind!” It says.

It seems quite unseemly that companies as big and powerful as Experian and TransUnion are acting like sleazy hucksters.  These are the very companies that have a statutory duty to provide people with free credit reports.  Perhaps we might be reassured that the FTC is watching over such practices:

Joel Winston, assistant director of financial practices at the Federal Trade Commission, says the agency is monitoring sites that are mimicking the AnnualCreditReport site, "and if we determine that consumers are being deceived into paying for something they should be getting for free, we are prepared to act against it."

But the FTC has failed to act on a complaint by Chris Hoofnagle of EPIC filed back in 2003 that contended that these practices were deceptive. 

These practices suggest that some credit reporting agencies are not discharging their statutory duty to provide free credit reports in good faith . . . to put it far too gently.       

Posted by Daniel Solove on May 23, 2005 at 01:30 PM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

The Future of the Blog

What will happen to blogs when they hit prime time?  It might even be fair to argue that right now is the start of prime time for blogging.  One interesting development is the rapid growth of advertising on blogs.  As this news article states:

Advertising content is of key interest to Blogads (http://www.blogads.com), which sells space on blogs.

"We fight a constant and horrifying battle with advertisers to keep the ads human and humorous and vaguely relevant and interesting," founder Henry Copeland said.

Blogads has a network of 750 blogs, including gossip-oriented http://www.thesuperficial.com/ as well as the politically bent http://www.wonkette.com/ and http://www.wonkette.com/. Advertisers have run the gamut from carmaker Audi to political and other special-interest groups.

Copeland said he expects to have 2,400 ads on blogs this month, up from 700 a year ago. The average blogger makes $50 a month from displaying Blogads, he said, but some bring in more than $5,000 monthly.

$5000 a month from blogging?  That's enough to make a living on blogging.  Will a group of professional bloggers emerge?  What will the impact of advertising be on the blogosphere?  What will happen if the mainstream media attempts to become more involved in the blogosphere?   

Judge Richard Posner has an interesting argument that bloggers should have an "exemption" from "the ethical standards applicable to the mainstream media."  But if blogging becomes commercialized, and as some blogs capture audiences that are larger than some newspaper or magazine circulations, should they have more responsibilities given their large social power?  To what extent will blogs begin to affect the mainstream media? 

What makes blogs so interesting is that today, anybody can become a pundit with a world-wide audience.   This can be quite democratizing, as people no longer need to work their way through the professionalized ranks to become a pundit.  Will this trend continue?  Or will blogs become more professionalized?  In other words, as advertisers and others begin to tap the power of the blogosphere, will this begin to blur the line between the blogosphere and mainstream media? 

I certainly don't know the answers, but I find it fascinating to ruminate over the future of blogging.  Thoughts anyone? 

Posted by Daniel Solove on May 23, 2005 at 10:43 AM in Blogging, Daniel Solove | Permalink | Comments (0) | TrackBack

Friday, May 20, 2005

Some Questions About Star Wars

I recently saw the new Star Wars movie, and although I try generally to post on more legal and weighty topics, I just can’t resist saying a few words.  Having grown up on Star Wars, I had to see the new movie within 24 hours of its release, but I’m proud I at least did not go to the midnight showing and could wait until the next morning.  That’s only because the first two prequels were so terrible. 

I’ve been pondering some deep issues about the Star Wars series, and although the movies are made to require a suspension of disbelief, I still find myself asking these questions.  Warning – spoilers below.

1. How could anybody write that dialogue?  Lines like Padme saying to Darth Vader: “You’re a good person, don’t do this”?  This hilarious review in the New Yorker captures it best:

The prize for the least speakable burst of dialogue has, over half a dozen helpings of “Star Wars,” grown into a fiercely contested tradition, but for once the winning entry is clear, shared between Anakin and Padmé for their exchange of endearments at home:

“You’re so beautiful.”
“That’s only because I’m so in love.”
“No, it’s because I’m so in love with you.”

For a moment, it looks as if they might bat this one back and forth forever, like a baseline rally on a clay court. . . .

Why didn’t anybody on the set say something when they were filming?  How could the crew refrain from laughing?   

2. How come Jedi Masters are killed so easily?  Do they put any schmo who picks up a light saber on the Jedi Council? 

3. We learn that the Death Star is being constructed as Episode III ends.  Why does it take some 20 years to complete, as it is finished not long before the Episode IV of Star Wars begins?  Were there construction delays?  Union problems?   After all, this isn't the Freedom Tower.

4. I still can’t understand the reason why Anakin goes to the dark side.  He wants to save his wife, but Yoda’s advice is to just let her die.  So if you care about a loved-one and don’t just want to let them go, then you’re in danger of becoming an evil madman.  The way of the “good side” of the force is to just shrug off the deaths of the ones you love and don’t bother lifting a finger to try to save them.  If that’s the good side of the force, the dark side must be really dark.   

5. In the original Star Wars, why is it that the storm troopers, described at one point as amazingly accurate shooters, can’t seem to hit anything or anybody with their blasters? If you’re creating a clone army, shouldn't you clone somebody who can hit a target?  The Emperor would have won if he just created storm troopers who had better aim.  And why do the storm troopers wear all that clunky armor if one blaster shot will kill them?  Heck, a rock thrown by an Ewok will kill them too. 

6. Others have pointed out this one, but how in such a high-tech society is it a surprise that Padme has twins?  And if Darth Vader can be saved despite being burned to a crisp, why does Padme die despite such wondrous medical technology?

7. How does Obi Wan Kenobi age so much in the 20 or so years between Episode III and IV?  After all, although old, Count Dooku leaps around like a cricket in his battles, but poor Obi Wan goes from a spry young man in Episode III to a very old man in Episode IV who can barely wave his light saber.   And why is Yoda on his deathbed by the time of Episode VI, only about 30 years after he fights like an acrobat on speed in Episodes II and III?  After all, if Yoda is over 800 years old, why should 30 more Yoda-years make such a big difference?

8. Why does R2D2 suddenly go from being a battle bot who can fly and do amazing tricks to a much less functional droid by Episode IV?  If C3PO’s memory is erased, why does R2D2 (whose memory isn’t erased) not tell him what’s going on sometime during the 20 years they hang out together between Episode III and IV?  Why keep it all a big secret? 

9. Why hide Luke on the planet where Darth Vader grew up with people he knows?  And if you want to hide Vader's son from him, why do you fail to change Luke’s last name from Skywalker?  The witness-protection program sure isn’t up to snuff in the Star Wars galaxy. 

10. Why does Yoda say he’ll miss Chewbacca?  Since when are they such great friends?  And how is it that at the very day and moment that Luke and Obi Wan enter the cantina bar in Episode III they just happen to run into Chewbacca?  [An interesting fact I learned while typing this post -- "Chewbacca" is part of Microsoft Word's spell check dictionary, as it corrected my misspelling.  It doesn’t recognize “tortious” or other commonly-used legal terminology, but apparently it is well-programmed for Star Wars.]  In an another amazing coincidence, R2D2 winds up in the hands of Luke.  In a galaxy of millions of planets and gazillions of life forms, it just so happens that R2D2 is purchased by Luke Skywalker.  Please don’t tell me the odds of that happening.  I guess that the Force works in mysterious ways.

Posted by Daniel Solove on May 20, 2005 at 02:00 AM in Daniel Solove, Film | Permalink | Comments (21) | TrackBack

Tuesday, May 17, 2005

What Is Law School All About? Thoughts on the Third Year of Law School

Laura Appleman has been posting some provocative recent posts here on PrawfsBlawg (here and here) about whether there should be a third year to law school.  The answer to this question depends upon what we believe law school should be all about. 

I believe that training students with skills to practice law is just one aspect of law teaching.  Lawyering skills might make students adept within the current legal system, but they might not help make students have a satisfying careers or achieve in life something they consider to be meaningful or figure out a way to change the legal system. Although lawyering skills are certainly very important to learn, there can and should be much more to a legal education.

The great virtue of law school is that it is one of the few times in people's legal careers where they can think more broadly about the law and what they are doing; they can think about why the law is the way it is; how the law might be changed; and how the law affects society.  In other words, law school is a time to think about more abstract questions, which is harder to do when one is busy with the day-to-day hectic pace of practice.  The best way to learn about practicing law is to do it, which is why clinics are an indispensable part of legal education.  But the classroom studies can provide another dimension, a focus on the big questions, a way to learn to think in new ways, and to explore various issues and topics that one might not encounter in one’s everyday practice. 

In a two-year legal education, much of this exploratory time might be lost.  It might limit students’ exposure to new and interesting topics that they might not ordinarily explore.  It would make law school more of a means to an end – passing through quickly to get a degree. 

 

The practice of law has a lot to benefit from being seen through a broader and more critical lens.  When folks talk about being “practical” in a law school education, they typically mean learning various skills that will improve students’ ability to win cases or do other legal tasks.  But a law school education can be practical in another way that it often isn’t – it can invite thinking about the way law is practiced, how this affects the lives of those practicing it, and how it affects society and the parties involved in the legal system.  This is practical too.  Indeed, these issues are often not explored sufficiently, and students leave law school and head off into jobs where many will wind up unhappy.  Dissatisfaction rates among lawyers are very high.  There are few professions that provide the level of empowerment and potential that law can provide.  It should be shocking that with these attributes, so many lawyers are unhappy and unfulfilled.  Why does this have to happen?  How can one achieve social and political change through law?  The practical elements to these questions are often not taught enough.  As professors, we often discuss in class how the law should be, but we rarely discuss practically how one might work to change the law or the legal system. 

I agree that currently, the third year of law school is often unproductive for many students.  But it need not be this way.  Perhaps we should spend some time in our training of law students to think about ways that the practice of law can be transformed into a rewarding and fulfilling experience for more lawyers and how it might better benefit society.  Perhaps this is the practical dimension that the third year of law school could provide. 

Posted by Daniel Solove on May 17, 2005 at 11:02 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (17) | TrackBack

Blogging Can Get You Sued: Privacy Tort Suit Against Washingtonienne Blog

Back in the summer of 2004, a clerk on Capitol Hill blogged about her sexual exploits on a blog called Washingtonienne.  A very interesting article in the Washington Post Magazine describes what happened:

The instant message blinked on the computer at Jessica Cutler's desk in the Russell Senate Office Building. "Oh my God, you're famous." Before she could form the thought -- "famous, cool" -- or puzzle how she, a lowly mail clerk, had escaped obscurity, a second instant message popped up on her screen. Startled, Jessica recalls, she began to curse.

"Your blog is on Wonkette," the message said.

Jessica's blog (short for "Web log") was the online diary she had been posting anonymously to amuse herself and her closest girlfriends. In it, she detailed the peccadilloes of the men she said were her six current sexual partners, including a married Bush administration official who met her in hotel rooms and gave her envelopes of cash; a senator's staff member who helped hire her, then later bedded her; and another man who liked to spank and be spanked.

Wonkette is a popular online gossip column that was read by lots of Jessica's friends and Capitol Hill co-workers, including some of the men in her blog.

The messages warning Jessica that her private little joke had just gone very public came from a girlfriend over on the House side. . . .

Typing and clicking her mouse at a desperate pace, Jessica logged on to blogger.com, the electronic bulletin board where she'd posted her sexploits under the pseudonym Washingtonienne, and deleted her blog, hoping she'd blown her diary into oblivion.

But it was already too late.  Now, Cutler is being sued in federal district court by one of the people she wrote about in rather graphic detail.  The cause of action is the public disclosure of private facts tort, which is defined in the Restatement (Second) of Torts § 652D:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

     (a) would be highly offensive to a reasonable person, and

     (b) is not of legitimate concern to the public 

Some interesting issues in this suit:

1. The blog was originally anonymous.  The people Cutler blogged about weren't identified.  Cutler referred to the plaintiff by his initials only.  Cutler was later identified as the author of the blog, and she achieved great infamy for it.  She posed for Playboy and signed a book deal for a six-figure advance. But the identity of the plaintiff was still not revealed by Culter.  According to the Post article:

Jessica was officially fired for misusing an office computer, but the men she wrote about kept their jobs. What they lost was their privacy. Jessica's blog identified them only by their initials. But amateur Internet sleuths who read the blog searched electronic databases looking for likely suspects, then posted names and photographs on the Internet. Jessica still refuses to name the men publicly.

The complaint alleges that the plaintiff was still identifiable by the details and initials used.  To what extent should Cutler be liable if she didn’t directly identify the defendant but gave a lot of details so that he could be identified by others?    

2. In order to bring the suit, the plaintiff reveals his name in the complaint.  In Europe, the common practice is for such plaintiffs to proceed anonymously; in the U.S., proceeding anonymously is rare.  It seems odd that in the U.S., a plaintiff must increase and exacerbate the disclosure in order to seek legal redress. 

3. To what extent should Cutler have a right to talk about her sexual exploits?  Should she be liable under the First Amendment for speaking about the lurid details of her own life?

For those interested in the public disclosure of private facts tort, I’ve written an article, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, taking on Eugene Volokh, who contends that the public disclosure tort violates the First Amendment.  I argue that the tort is valid under the First Amendment, and I justify normatively why the tort is a good thing, too. As for the Cutler case, I haven’t yet formed much of an opinion, but I'm inclined to think that the plaintiff has a good case.    

Posted by Daniel Solove on May 17, 2005 at 04:00 PM in Blogging, Daniel Solove, Information and Technology | Permalink | Comments (2) | TrackBack

Monday, May 16, 2005

PrawfsBlawg's Dan Markel in the Spotlight

Over at CrimProf, Dan Markel is featured in the spotlight

Posted by Daniel Solove on May 16, 2005 at 01:40 PM in Criminal Law, Daniel Solove | Permalink | Comments (0) | TrackBack

Sunday, May 15, 2005

Security, Privacy, and Shark Bites

Recent discussions regarding the Real ID Act follow the same general path as many discussions about the trade-offs between security and privacy.  These discussions typically begin with taking a security proposal and then weighing it against its costs to privacy and civil liberties.  What is often not done, however, is to put the security proposal through meaningful scrutiny as an effective security measure.  Instead, it is often assumed that the security measure is worthwhile, and the only question is whether it is worth the trade-off in privacy and civil liberties. 

But what if security measures against terrorism were examined with a more critical eye?  I believe that the risk of terrorism is not being assessed in a rational way and is receiving a disproportionate amount of resources.  This can have grave consequences, probably resulting in significantly more loss of life than a major terrorist attack.

Consider the risk of death from terrorism on US soil.  Here are the statistics I could find:

-- 9/11 – 2749 fatalities

-- First WTC bombing – 6 fatalities

-- Oklahoma City bombing – 169 fatalities

-- Unabomber – 3 fatalities

-- Olympic Park bombing – 1 fatality

The total is 2928 fatalities.  This has occurred over the past 15 years.  That’s about 195 lives per year.   Now, consider other risks.  Flu deaths are estimated to be around 30,000 to 40,000 in a good year. Terrorism is nowhere near this danger level.   Another 40,000 die in auto accidents each year.  On the scale of things, dying from terrorism is a very tiny risk.   

Dramatic events and media attention can cloud a rational assessment of risk.  This reminds me of the summer of the shark bite, when a barrage of media coverage about shark bites lead to the perception that such attacks were on the rise.  This wasn’t the case at all.  Consider the following from a CNN article:

The media coverage was prompted by a bull shark biting off the arm of an 8-year-old boy on a Florida beach July 6, 2001. Overnight, shark bites and sightings became major international news, triggering countless TV news reports and front-page stories. . . .

Lost in the hoopla was the fact that in 2001 there were 13 fewer attacks worldwide than the year before, Burgess said. The same year, four human deaths were linked to shark bites compared with 13 in 2000, he added.

Certainly, we should guard against terrorism, but rarely do discussions about the sacrifice of civil liberties explain the corresponding security benefit, why such a benefit could not be achieved in other ways, and why such a security measure is the best and most rational one to take.

What is troubling is that the government could reduce many risks we face if it expended more resources to address these risks.  The government could do quite a lot to prevent flu deaths, such as subsidize more vaccines.  Instead of spending millions studying data mining, maybe that money could be used to study ways to better prevent motor vehicle deaths or injuries.  Instead, because terrorism is dramatic and gets lots of news coverage (like shark bites), it gets a disproportionate amount of attention.

Another risk that is not getting sufficient attention, in my opinion, is the risk from a pandemic of SARS or bird flu.  This could kill millions of people.  Consider the following from CNN:

Pandemics usually occur every 20 to 30 years when the genetic makeup of a flu strain changes so dramatically that people have little or no immunity built up from previous flu bouts.

"During the last 36 years, there has been no pandemic, and there is a conclusion now that we are closer to the next pandemic than we have ever been before," Stohr told reporters.

There are certainly grave risks from terrorism, and we should not ignore these risks.  But we must prioritize risks.  Even focusing on terrorism alone, we must recognize that not all terrorist risks are the same.  There’s only so much damage one can do by blowing up a plane.  In my view, the most serious risks of terrorism include nuclear or biological weapons.  Protecting against bioterrorism would involve many of the same measures to ready ourselves for a pandemic.  Regarding nuclear terrorism, it seems far from clear that increased identification or using databases to spy on people are a good way to address this risk.  Consider this Washington Post article about our response to nuclear terrorism:

The obvious effective way to combat nuclear terrorism seems to be preventing nuclear material from getting into the hands of terrorists.  Nevertheless, the government throws tons of money into identification requirements and into research into data mining, which have speculative benefits at best.  In the meantime, more obvious and effective security measures aren’t being undertaken.  Ironically, those who advocate for security should be just as outraged as the privacy advocates. 

But more than 3 1/2 years after the Sept. 11, 2001, attacks, the U.S. government has failed to adequately prepare first responders and the public for a nuclear strike, according to emergency preparedness and nuclear experts and federal reports. . . .

Security experts consider a terrorist nuclear strike highly unlikely because of the difficulty in obtaining fissionable material and constructing a bomb. But it is a conceivable scenario, especially in light of the lax security at many former Soviet nuclear facilities and the knowledge of atomic scientists in such places as Pakistan.

Posted by Daniel Solove on May 15, 2005 at 04:47 PM in Daniel Solove, Information and Technology | Permalink | Comments (1) | TrackBack

Wednesday, May 11, 2005

The Multistate Bar Exam as a Theory of Law

Picture_mbe_4 What is the most widely read work of jurisprudence by those in the legal system?  Is it H.L.A. Hart’s The Concept of Law?  Ronald Dworkin’s Law’s Empire?  No . . . it’s actually the Multistate Bar Exam. 

Almost all lawyers have read it.  Although the precise text is different every year, the Bar exam presents a jurisprudence that transcends the specific language of its text.  Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law.  It therefore comes as a great surprise that the Bar exam has received such scant scholarly attention. 

No work on law has perhaps been so widely read by those in the legal system.  And not only is the Bar read, but people study it for months, devoting more time to it than practically any other jurisprudential text.  It is unbelievable that such a widely read and studied text has barely been discussed in the academy.  In fact, legal scholars readily dismiss the Bar exam.  Despite the fact that the Bar exam purports to present the valid law in the United States, scholars don’t cite to it as legal authority.  Nor do judges.  The Bar exam gets little mention in treatises either.

It’s about time to rectify this situation and put the Bar exam in its place as the great work of jurisprudence that it is.

Beyond merely presenting rules of law, the Bar exam presents a full-fledged theory of law.  But what is its theory of law? 

I got my hands on the 1998 July Multistate Bar Exam, which is made available to Bar Exam takers as a sample practice test.  To truly understand the Bar, one must read through all its physical manifestations, but reading through more than one Bar exam was more than this author could bear, notwithstanding the great insights that it would have clearly produced.  I therefore leave further work on other Bar exams for future scholars in this young yet hopefully growing new field of study. 

The first thing to note is that this Multistate Exam comes on beautiful thick acid-free paper designed for indelibility.  This, I believe, is a testament to the authors’ (who remain anonymous) intent that the Exam be kept for years as a treasured centerpiece of any legal scholarly collection. 

I am also struck by how the Bar exam is a Protean work of jurisprudence.  It takes many different forms, and changes each year, but I believe its overarching teachings are the same.  Although it changes its form twice each year, it is still referred to singularly as the Multistate Bar Exam.  It is therefore, paradoxically, both one and many.  Few if any other works of jurisprudence come in such a pluralistic form. 

On to more conventional jurisprudential observations.  The Bar exam draws heavily from Ronald Dworkin, who argues that there are indeed answers to even the thorniest legal issues.  Departing from H.L.A. Hart’s open texture of law, where there are pockets of uncertainty, for Dworkin, there is an answer to all legal questions.  And so, too, on the Bar.  Every question has an answer.

The Bar states that one is to choose the best answer, and thus it does at least recognize that right-versus-wrong is too simplistic a way to understand the law.  But what does “best answer” mean?   The exam states that all questions should be answered “according to the generally accepted view, except where otherwise noted.”  We’re back to Hart again, with a kind of rule-of-recognition for the rules on the Bar:  The best answer is the generally accepted view.  But among whom?  Lawyers?  Judges?  Academics?  The public?  The Bar doesn’t tell us. 

The Bar draws heavily from legal realism as well as from more recent movements such as law and narrative.  The Bar instructs us about how rules affect people on the ground.  We learn the plight of those subjected to the law and how the law affects them.  The Bar exam presents itself as 200 stories about the law.  This is not a top-down theory of the law, but a bottom-up illustration of the way the law works in practice in the lives of individuals.  As Karl Llewllyn observed: “We have discovered that rules alone, mere forms of words, are worthless.  We have learned that the concrete instance, the heaping up of concrete instances, the present vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all.”

Despite its commitment to the concrete, the Bar diverges from legal realism in its view of the relationship between fact and law.  In a sharp departure from realist ideas, the law on the Bar is self-executing.  Consider question 101, which discusses how Dirk forcefully enters John and Marsha’s apartment, binds and gags John, and steals a diamond necklace from a safe.  John, in an attempt to unbind himself, suffers a heart attack and dies.  The question then asks:

Dirk is guilty of:

(A) burglary, robbery, and murder.

(B) robbery and murder only.

(C) burglary and robbery only.

(D) robbery only.

The exam answer key says that the correct answer is A.  But where’s the jury in all this? How can Dirk be guilty without a jury trial?  Are these facts correct?  Here, Dirk is tried-and-convicted without a jury!  What about Dirk’s constitutional rights?   

This attitude toward facts and juries pervades throughout the Bar.  Tort question 192 asks: “If Actor sues Vineyard to recover damages as a result of Vineyard’s use of the photograph, will Actor prevail?”  How can one really say for sure?  So much for the judges and juries that must apply the law – they are viewed as irrelevant by the Bar. The Bar tells us that the human element – the discretion of prosecutors, lawyers, judges, and juries – is immaterial to the law.   

But yet, one should avoid hastily concluding that the Bar’s vision of the law is not humanistic.  The Bar’s vision of the law is far more complex.  The Bar is, in fact, a very humanistic document.  We hear the harrowing stories of great loss and terrible wrongdoing.  We witness horrible crimes, bungled contracts, corporate malfeasance, and wretched accidents.  Each story involves people who have real lives, who suffer or rejoice.  Unlike abstract theories of jurisprudence, the Bar focuses on how the law affects particular people.  It is remarkable in its humanism. 

When one examines the substance of these stories, the Bar paints for us a powerful and telling picture of the legal system.  One notable dimension of the Bar’s depiction of the law is that many really good people get screwed in the system.  There are hurt little-old-ladies who don’t get to collect tort damages.  Dastardly criminals go free because their burglaries occurred during the daytime rather than at night.  (Indeed, the requirement that burglaries must take place at night is based on archaic common law definitions of crimes, which although having long been supplanted with statutory law, remain alive-and-well on the Bar.  Ironically, if one practiced the criminal law on the Bar exam, one might be disbarred.) 

Why do so many good people lose in the legal system?  Why is there such grave injustice in this jurisprudential vision of the law?  Here, the Bar is teaching us the legal positivist notion that law is separate from morality.  Despite rejecting Hart’s open texture of the law in favor of Dworkin, the Bar eagerly embraces Hart’s strict separation between law and morality.

In the end, the Bar doesn’t proffer a theory about how the law makes sense or why it is just or unjust or even how to make it coherent.  Instead, the Bar simply says that the law is.    This is a stark, almost existential view.  The Bar seems to be saying: “Here’s the law.  It helps some people.  It screws other people.  And that’s it.  There’s nothing else to say.”  What about whether the rules are just?  Whether or not they should be changed?  These questions don’t matter. 

Thus, the Bar is a complex and rich theory of law, one that requires further study.  I have only begun to scratch the surface of this great jurisprudential work.  And since it will continue to evolve, twice each year – once in February and once in July – it is continually being updated.  It’s a work of jurisprudence that just keeps on giving.  All of us should be very thankful indeed for the great efforts of the anonymous legal philosophers who continue to toil on this evolving jurisprudential masterpiece. 

Posted by Daniel Solove on May 11, 2005 at 09:08 AM in Daniel Solove, Legal Theory, Life of Law Schools | Permalink | Comments (14) | TrackBack

Tuesday, May 10, 2005

Testifying Before Congress Tomorrow on Privacy and Security Breaches

This Wednesday, I’ll be testifying before the House Committee of Energy and Commerce on “Securing Consumers' Data: Options Following Security Breaches" (beginning at 11AM, webcast here).   This hearing is one of a few that address the recent news of major security breaches involving personal data on millions of Americans.  You can read my written testimony here.  Folks interested in these policy issues might be interested in a short paper I wrote, along with Chris Hoofnagle, called A Model Regime of Privacy Protection, that makes sixteen legislative proposals for addressing information privacy problems.

Posted by Daniel Solove on May 10, 2005 at 12:15 PM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Why the Real ID Act is a Really Bad Idea (Part II)

Here are some further thoughts on the Real ID Act.  I am not opposed to identification per se.  There are some who argue that identification demeans human dignity by treating people as numbers.  I really don’t find arguments such as this convincing. Here are a few of the reasons why I think that the Act is problematic: 

1. The Real ID Act will be very costly.  Millions of people will have to get new drivers’ licenses.  Is the expenditure of money worth the increased security benefit?  I’m speculating of course, but I tend to doubt it.  In fact, I think that this is spending a ton of money for a very little marginal increase in security. There are many other things that can be done to protect security that are cheaper, much more effective, and don’t raise privacy or civil liberty concerns. 

2. The Real ID Act is more than just an identification requirement.  Identification doesn’t tell you much other than whether somebody matches a photo on a card.  The person could still be a terrorist or Osama Bin Laden even if he is who he says he is.  The primary security benefit from identification comes from linking people in realspace to a database of information.  The Real ID Act involves the creation of a linked database system.  Such previous attempts have received much attack.  The MATRIX, a multi-state database linkage system, was abandoned by many states for privacy concerns. The Real ID Act will create databases akin to the MATRIX via the back door. 

3. Although it is not mandated by the Act, any attempt to use RFID technology in an identification card is fraught with security risks.  I won’t reiterate the debate about RFID chips in passports, but I haven’t found many people in the know who find it to be a wise idea from a security standpoint.

4. One interesting fact -- you don't need identification to walk into Senate or House buildings. One would think that if identification is so important to security, people who come and go into the buildings of Congress should show ID. It is hard to imagine that this was simply overlooked. My guess is that people aren't identified so that lobbyists can quietly come and go without creating records. It seems as though folks in Congress don't seem to really think much of the relationship between identification and security, as they trust their own lives to a system without identification.

Update: Orin Kerr has some thoughts on the matter over at TVC.

Posted by Daniel Solove on May 10, 2005 at 11:42 AM in Daniel Solove, Information and Technology | Permalink | Comments (3) | TrackBack

Teaching Information Privacy Law

Since this blog is read by many new law profs, I thought I’d recommend information privacy law as a course you might consider teaching.  (I have a casebook in the field, so this is really a thinly-disguised self-plug.)  Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools.  I’m hoping to change all that.  So if you're interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh.  Lots of media attention on privacy law issues these days.  Students are very interested in the topic.

2. Lively cases and fascinating issues abound.  There’s barely a dull moment in the course.  Every topic is interesting; there is no rule against perpetuities to cover!

3. It’s a way to teach fascinating First Amendment, Fourth Amendment, and other constitutional law issues.  Often, those wanting to teach in these areas have to wait in line until the course is “released” by professors who already teach it.  Getting the First Amendment course, for example, is about as easy as unseating an incumbent in Congress.  Information privacy law lets you teach really interesting First Amendment issues and there’s usually not a long succession line to teaching an information privacy law course.  Moreover, many law schools already have somebody teaching cyberlaw, and information privacy law covers some incredibly interesting law and information technology issues.

4. The field is growing . . . big time.  There are many new jobs in privacy law – jobs at privacy advocacy organizations, most major companies, financial institutions (must have a privacy officer per Gramm-Leach-Bliley Act), health institutions (must have a privacy officer per HIPAA regulations), and the government (DHS privacy office, etc.).  Many new laws are being passed regarding privacy, and cases involving these issues are multiplying. 

5. The field has some staying power.  As long as computers and information remain in fashion, privacy will remain a big issue.  It’s not going away . . . the field, that is.  Privacy . . . well, that’s a different story.      

6. Plenty of material for a three-unit course.  You can teach the course with a focus on law enforcement and security issues, or on cyberspace and computer issues, or on media and entertainment issues, or on regulatory issues about healthcare and financial data.  Because there is so much material to work with, you can teach the course in many different ways. 

   

7. Great synergies between teaching and scholarship.  There’s a lot left to write about in the field, and teaching the course helps tremendously in developing good ideas for scholarship.  The community of folks who write in privacy law is wonderful – a really neat group of professors.  We love to welcome new folks into this great club. 

8. The course is very intellectually rich.  There are lots of interesting theoretical issues to ponder.  And the theory doesn’t turn off students -- they really dig it.  Really! 

9. It’s easy to teach.  The field is very accessible.  Currently, there are many great books, articles, websites, and other resources in the field. 

10. I don't have a tenth reason, but I thought that I'd do something to round this list out to ten.

So think about adding information privacy law to your course package.  It’s a rewarding and fascinating course.  Many law schools still don’t have a course in the field, and it is my hope that someday it will be offered everywhere.

Posted by Daniel Solove on May 10, 2005 at 06:55 AM in Daniel Solove, Information and Technology, Life of Law Schools | Permalink | Comments (2) | TrackBack

Monday, May 09, 2005

Why the Real ID Act is a Really Bad Idea.

Quietly, almost by stealth, Congress is slipping through the Real ID Act by attaching it to a military funding bill.  The bill standardizes drivers' licenses, beginning in three years, so that millions of people in numerous states will have to get a new license.  It will embed personal information into a machine-readable format.  Security expert Bruce Schneier has a powerful argument that the measure will not only fail to improve security but will also create new security risks.  And Declan McCullagh has a good FAQ about it. 

I will not repeat the criticisms about the Act here, which are well-stated in the links above.  Regardless of what one thinks about the merits of the Real ID Act, the way that this is being legislated is despicable (to put it mildly).  National identification has long been a very controversial issue.  It is entirely inappropriate to resolve an issue such as this without debate or without hearings.

Posted by Daniel Solove on May 9, 2005 at 08:01 PM in Daniel Solove, Information and Technology | Permalink | Comments (9) | TrackBack

Saturday, May 07, 2005

How Private is Our Email? Councilman's unfinished business

In United States v. Councilman, a 1st Circuit panel held that email intercepted contemporaneously with its transmission did not fall under the protections of the Wiretap Act.  The case went en banc and an opinion has yet to issue.  Orin Kerr at the VC just wrote a post about recent developments about the issue.   He writes:

Congress has introduced a number of statutory amendments to try to settle the matter. The best was introduced on April 28: Senator Leahy introduced S. 936, the E-Mail Privacy Act of 2005, which is a very short and sweet solution. The Leahy bill adds just a few words to the definition of "intercept" under the Wiretap Act to make its already implicit temporal scope textually explicit. It's an elegant and correct amendment.

Orin is correct that this does fix the Councilman problem, but I think that many important issues are being lost in the debate.  Even if the Councilman problem is fixed, this still leaves open tremendously important issues about how email should be protected by electronic surveillance law.

To understand the issues, consider these scenarios:

1. An email is intercepted contemporaneously as it is being transmitted.  This is Councilman.  Orin is correct that the panel was wrong; this should be covered by the Wiretap Act that governs intercepting communications contemporaneously with their transmission.

2. An email is accessed while residing at an ISP server, not contemporaneously with transmission, but prior to the recipient downloading the email.  This is covered under the less stringent protections of the Stored Communications Act.  Should there be a difference?  Why should it matter whether the email was obtained contemporaneously or while stored but unread?  In this respect, email will generally get less protection than telephone calls.   Obtaining the contents of a phone call is done by a contemporaneous interception.  But email communications are often stored for periods of time; their contents can be obtained non-contemporaneously.  This means that email will in many instances get less protection under federal electronic surveillance law than a phone call.   I believe that the contents of an email should be protected just as much as the contents of a phone call. 

3. A person's webmail account containing the emails they have read and have sent are accessed.  According to the DOJ interpretation, once an email has been read, it is no longer even a stored communication.  Since it is not accessed contemporaneously with transmission, there is no violation of the Wiretap Act.  And there's no protection under the Stored Communications Act since it falls outside of the definition of stored communication.  The problem is that many people are increasingly using webmail, which has large storage capabilities, and are storing all of their outgoing and incoming emails.  I believe that it is a huge problem that all of this falls outside the scope of electronic surveillance law.

These are just a few of the big issues facing email.  Councilman is one issue, but I believe that the other issues warrant significant attention, and I hope with that all the attention on Councilman, Congress does not lose sight of these other problems.  I discuss many of these problems in my article, Reconstructing Electronic Surveillance Law.  Orin Kerr's articles on the Stored Communications Act and on the problems of a lack of an exclusionary remedy under ECPA are also definitely worth reading. 

Posted by Daniel Solove on May 7, 2005 at 05:57 AM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Friday, May 06, 2005

An Unusual Identity Theft

Sometimes we all have a moment when we say that we've become our parents.  Well, now it's been taken to a new level.  In an unusual case of identity theft, the son of a baseball hall-of-famer (Carl Yastrzemski) stole his own father's identity. 

Posted by Daniel Solove on May 6, 2005 at 10:33 AM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Are Conservatives the New Postmodernists?

I’ve been noticing an interesting trend among the group of conservatives today who are arguing for greater intellectual diversity in higher education and for inclusion of intelligent design in grade school textbooks.  The rhetoric being employed by these groups who aim to “reform” education seems to draw a lot on postmodernist ideas.

For a long while, it was the liberals who generally embraced postmodernism.  Certainly, not all liberals accepted postmodernist ideas, but I believe it is fair to say that the ranks of the postmodernists were largely filled with liberals, not conservatives.  Postmodernists focus on a set of interrelated themes, such as the blurring between fiction and reality, the impossibility of universals and master narratives, the multiplicity of valid interpretations, the social construction of individual identity, and the contingency of human events and culture.  Many conservatives resisted postmodernist ideas, arguing that objective “truths” were not merely “viewpoints” and that not all interpretations were equally valid.  The danger of postmodernism, these critics argued, was that it led to relativism.

But today,

the groups who are attacking the academy for being too liberal and who are pushing for inclusion of intelligent design in grade school education are using rhetoric laden with postmodernist ideas.  Consider the debate about intelligent design.  Brian Leiter’s blog contains a detailed documentation and thorough critique of repeated attempts by some to push for the teaching of intelligent design.  The method they go about doing this is to push for alternative perspectives to evolution because nobody can know for sure what is the truth.

Consider David Horowitz’s manifesto for attacking the academy for being too liberal.  It calls for “diversity,” “intellectual pluralism” and a “plurality of methodologies and perspectives.”

What I find interesting about this debate is how the rhetoric of those attacking the “liberal academy” in higher education and the teaching of evolution in grade school is based on postmodernist ideas.  This reminds me of a terrific article by Jack Balkin at Yale about the phenomenon of “ideological drift.”  Ideological Drift and the Struggle over Meaning, 25 Conn. L. Rev. 869 (1993).

As Balkin notes: “Ideological drift in law means that legal ideas and symbols will change their political valence as they are used over and over again in new contexts.” He goes on to point out:

Since the 1920s left liberals in the United States have tended to take relatively libertarian views on free speech, while conservatives have been more likely to balance the interest in free speech against the interest in social order, the preservation of important social values, and so on. In the last several years we have seen a gradual and partial reversal of these positions in debates over regulation of sexual and racial harassment, campaign finance, and pornography.  [Another] example arises from the notion of racial equality. The concept of the "colorblind" Constitution, offered by the first Justice Harlan in 1896 as a progressive (and even radical) argument against Jim Crow, has by 1992 become the rallying cry of conservatives who seek to protect white males from racial oppression.

Indeed, not only legal ideas are subject to ideological drift . . . certain ways of thinking drift as well.  In the case of intelligent design, it appears that these groups are merely using postmodernist thinking as a tool to achieve their ends.  I doubt many of those advocating for teaching intelligent design would accept the full implications of their embrace of postmodernism.  But I wonder whether they can just use ideas as rhetorical tools without it having some effect on their underlying commitments.         

Posted by Daniel Solove on May 6, 2005 at 07:44 AM in Daniel Solove, Legal Theory | Permalink | Comments (9) | TrackBack

Thursday, May 05, 2005

Some Thoughts on Lateral Hiring (Getting Noticed)

There’s been a lot of discussion, on this blog and elsewhere, about lateral hiring in law schools.  A number of folks have asked about my views on the matter, so here are a few of my thoughts.  My perspective is informed by my own experience, as I have made a lateral move.  I began teaching at Seton Hall Law School in 2000.  I visited GW in the fall semester of 2003 and moved there permanently in 2004. 

The big question is what one has to do in order to make a lateral move.  Moving laterally is very difficult.  The amount of movement in the legal academy is very small.  My first piece of advice is to be sure to accept jobs at schools that you really like, because you lack a lot of control over the lateral process.  That said, there are things you can do if you have lateral dreams.  The two most important things to do, in my opinion, are: (1) write good stuff (and write frequently); (2) get to know professors at other schools. Regarding scholarship, quality counts much more than quantity, but quantity can improve your chances of getting noticed.  Regarding the second suggestion, meeting people is key to increasing your chances at making a lateral move.  Often, deans or committees decide who to bring in for visits or lateral appointments.  You might be lucky if your paper happens to be on the desk of the right person at the right time, but the best way is for somebody on the faculty to recommend you.  This goes a long way, because getting noticed is a large part of the battle. 

How do you get to know other professors?  Go to conferences and introduce yourself to other professors.  Read widely so you know about other professors’ work.  Send your drafts to professors in your field for comments.  Provide comments to other professors on their work, such as papers posted on SSRN.  Meeting others can take a lot of time, effort, and travel, but it is worth it.  It is valuable in and of itself, but it also will help you in the lateral process. 

Posted by Daniel Solove on May 5, 2005 at 07:30 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (29) | TrackBack

Stopping People at Checkpoints to Construct a Database

An interesting recent article appeared in the Washington Post about a very troubling practice in Washington, DC.  Police are setting up motorist checkpoints in high-crime areas of the city and are stopping people to gather their names, addresses, and other information.  According to the article, this information is

fed into the database, which is linked to a computer that includes arrest records and mug shots of criminals. The database allows a detective, for example, to enter into the computer the description of a car that fled a crime scene in hopes of finding a match from a traffic checkpoint.

Over 100 people are pulled over regularly each evening at about a half dozen checkpoints.  Is this practice constitutional? 

The answer is unclear.  The Court has struck down checkpoints for license and registration, Delaware v. Prouse, 440 U.S. 648 (1979), but has upheld them for catching drunk drivers, Department of State Police v. Sitz, 496 U.S. 444 (1990). In Indianapolis v. Edmond, 531 U.S. 32 (2000), the Court struck down a checkpoint to investigate drug violations: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion.”  But in Illinois v. Lidster, 124 S. Ct. 885 (2004), the Court upheld a checkpoint where police stopped motorists to ask about whether they had any information about a hit-and-run accident that killed a bicyclist.  My view is that the DC checkpoint is closer to that in Edmond, but Lidster muddies the waters of checkpoint law (which were quite muddied already).  Thoughts anyone?

These checkpoints raise another interesting and troubling issue:

What about the database?  Is the creation of such a database problematic?  The Fourth Amendment is largely designed to regulate government information gathering, and it says little about what may be done with information once it is gathered by the police.  The federal Privacy Act regulates what federal agencies can do with the repositories of personal data they maintain, but there are only a few states that have privacy acts of their own.  The constitutional right to information privacy, a spinoff of the substantive due process right to privacy, protects against improper disclosures of personal data by the government.  But what about the creation and use of this database?  The point of this post is to raise some questions, not to provide all the answers, so I will stop writing here.  I’m curious about what readers think.   

Posted by Daniel Solove on May 5, 2005 at 09:45 AM in Criminal Law, Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Wednesday, May 04, 2005

Information Privacy and the States

There's been a ton of media exposure about security breaches at major companies.   Most recently, Time Warner admitted it lost data on 600,000 current and former employees.  Bank of America Lost data on over 1 million people.  ChoicePoint sold personal information on about 145,000 people to identity thieves.  And Lexis Nexis had data on about 310,000 people improperly accessed.  USA Today adds it all up and concludes:

In breaches reported publicly since February, more than 2.5 million records may have been exposed to thieves at data broker ChoicePoint, retailer DSW, news and information broker LexisNexis, the University of California at Berkeley and elsewhere.

I've often been asked whether federal legislation is likely.  It is hard to be optimistic with Congress getting anything done lately, let alone passing bold new privacy protections.  But an interesting development is that Congressional action might not be all that relevant.  When it comes to consumer privacy, the states (especially California) have been leading the way.  It was California's law requiring disclosure of security breaches that prompted ChoicePoint to send letters to Californians about the breach back in February.  Numerous states are now moving on new bills to address these problems.   My speculation is that the companies might themselves push for federal legislation to stave off the state laws. 

Posted by Daniel Solove on May 4, 2005 at 06:11 PM in Daniel Solove, Information and Technology | Permalink | Comments (2) | TrackBack

Checking in for a Visit

I'm delighted that Dan invited me for a visit on this great blog.  Lots of interesting stuff here on this blog, and I'm looking forward to being a part of it for the next few weeks.  I'm a law professor at GW Law School, have been teaching for 5 years, and my areas of interest are information privacy law, criminal procedure, First Amendment, jurisprudence, criminal law, and law and literature.  Anyway, I'm happy to be hanging out here at PrawfsBlawg. 

Posted by Daniel Solove on May 4, 2005 at 05:25 PM in Daniel Solove, Housekeeping | Permalink | Comments (0) | TrackBack