Wednesday, July 27, 2011

Amicus Support Requested: Hosanna-Tabor

Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.  They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief.  Here's their description of the case and the issues, which I am happy to pass along:

Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired.  Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.

Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister.  If she is not a minister, she will probably win.  After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses.  She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.  

The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination.  The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it

The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.

We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply.  Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.  

 As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.

If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:

Leslie C. Griffin & Caroline Mala Corbin
[email protected]; [email protected]

Posted by Lyrissa Lidsky on July 27, 2011 at 02:37 PM in Constitutional thoughts, Employment and Labor Law, First Amendment, Gender, Lyrissa Lidsky, Religion | Permalink | Comments (1) | TrackBack

Wednesday, July 20, 2011

Must Be Nice

Despite being tempted to strangle the next person who tells me how nice it must be that I have the summer off, I know that I will nod and smile and not even try to explain what it is my employer expects me to be doing during the summer or how publishing and administrative obligations hang over me like the Sword of Damocles even when my childcare is unpredictable and my family obligations multiply like rabbits.  Not only is it unbecoming to complain about one of the few downsides of a pretty perfect job; no one will believe me anyway.  

Posted by Lyrissa Lidsky on July 20, 2011 at 04:10 PM in Lyrissa Lidsky | Permalink | Comments (8) | TrackBack

Tuesday, July 05, 2011

The Costs of Tenure Denial

Tenure denials are devastating to the person who is denied, his or her family and friends, and other supporters. Tenure denials are terrible for academic institutions, too, because they create rifts among colleagues that carry forward for years, and they often generate undue paranoia among those on the tenure track but not yet tenured; they also upset students and alumni who knew the professor denied tenure, particularly if the person denied was a great teacher.  And this account doesn't even factor in the litigation that tenure denials sometimes generate.

Some of the personal costs of tenure denial are recounted in this interesting and poignant article by Daniel and Erika Drezner, who look back on Daniel's tenure denial five years after the fact.  One of the insights from Daniel's piece that struck me was this one:  "People who earn tenure tend to have strong allies who lobby fiercely on their behalf. I didn't have any of those."  Daniel's insight struck me as correct, though I'm almost glad I didn't realize it when coming up for tenure.

Posted by Lyrissa Lidsky on July 5, 2011 at 11:30 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (13) | TrackBack

Monday, June 06, 2011

Enhancing "Ability to Transfer" in Law Schools

The New York Times has an article about perceptual learning that arguably has implications for law school teaching. The article cites experiments that suggest that  when subjects/students are exposed to "visual, fast-paced" materials that "focus[] on classifying problems rather than solving them," they quickly learn to identify patterns and discern relevant facts. As one of the scientists quoted in the article notes, "[t]he brain is very good at sorting out patterns if you give it the chance and the right feedback” (emphasis mine).  This research arguably has implications for how traditional law school teaching methods might be reformed or supplemented to enhance students' "ability to transfer" abstract legal principles to new factual situations, and I'd love to see a study of this kind conducted at the law school level .  At a minimum, such a study might confirm for students that one of the most effective methods of studying for law schools exams (or the bar) is by working as many problems of the relevant type as possible beforehand. I vaguely remember reading a study (in the Journal of Legal Education?) some years ago that reported that a group of students who worked a professor's old exams at regular intervals throughout the semester got better grades at the end of the semester than a group of students who had been subject to extra tutorials with the professor each week. I'd like to see a similar study based on the perceptual learning techniques mentioned above. Any takers?

Posted by Lyrissa Lidsky on June 6, 2011 at 07:49 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (3) | TrackBack

Friday, June 03, 2011

An Arrow for Your Quiver: Contextomy

One engages in "contextomy" when one selectively takes words from their original context to distort their intended meaning.  In other words, contextomy involves quoting out of context.  This fun and useful coinage has been attributed to historian Milton Mayer.


Posted by Lyrissa Lidsky on June 3, 2011 at 01:40 PM in Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Monday, May 30, 2011

Titles: (Mr.) Professor X, Ms. Y

I and many other women professors I've talked to have had students refer to us as "Ms." or "Miss Y" literally in the same sentence that they refer to a male colleagues as "Professor X." It may seem trivial but it is annoying, and it creates a real quandary.  If you say something to the student, you run the risk of seeming unduly sensitive or prickly about prerogative. If you don't say anything, you run the risk of allowing the student to be eaten alive when he says something similar to a female judge.  So what's the right way to handle it?  When I first started teaching, I didn't say anything. Later, I decided to point out to the student that, while I'm sure he meant no offense, he should never make the mistake again lest he encounter a professor or  judge less tolerant than I. As I've become more senior (oh, painful phrase!), I have this experience less and less, but I am assured by female colleagues that it continues apace, which makes me wonder if a more systematic response might be warranted. I must say that as a 3L law student I bridled when a male law professor corrected me when I referred to my friends as "girls," but I had cause  to appreciate his wisdom when, just a few months later, I worked for a federal judge who treated his male clerks quite differently than his female clerks. I've never referred to any woman over age 18 as a girl again.

On a related note, a colleague brought to my attention that his students disproportionately referred to male parties on his exam  by last names and female parties by first names. What, if anything, is to be done?

Posted by Lyrissa Lidsky on May 30, 2011 at 06:29 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (20) | TrackBack

Wednesday, May 11, 2011

How abstract can an abstract be?

I'd like to submit an abstract for a conference on Constitutional Law that is scheduled for next November.  The abstract is due in a week or so. The problem is, I'm between projects (sort of: I'm finishing three "other" projects), and I have no idea what I'd like to write next, though I suspect very strongly that it will involve First Amendment law.  Now I can "invent" a project in a week as well as the next person, but is it honest to submit a proposal or abstract when you know that the paper you actually present next November may bear zero resemblance to the proposal or abstract? 

On a related note, I've always envied those people who have a fixed research agenda comprising ten years' worth of projects, all revolving around one central idea or theme.  I'm the kind of person who is (a) easily bored and (b) discovers a research agenda only after ten years of seemingly disparate publications.  In fact, I shouldn't even call my "agenda" an agenda.  It is more like a central preoccupation (with how assumptions about audiences shape speech torts or First Amendment doctrine) that I keep returning to whether I mean to or not.   By the way, this is an admission I can only make because I'm tenured and have a publication track record.  Assuredly it would be an unwise admission for an untenured person to make. Rather than being a sign of intellectual curiosity, it might unfairly be construed as dilettantism. 

Posted by Lyrissa Lidsky on May 11, 2011 at 11:31 PM in Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Interesting Defamation Claim

Premier Exhibitions can proceed with a libel claim against a human rights foundation that claimed that the dead bodies it used in its "Bodies" exhibition were those of executed Chinese prisoners obtained on the black market.  A federal district court in Florida (Judge Merryday) refused to dismiss the claim for lack of jurisdiction, since the website of the director of the human rights foundation was accessible in Florida.  There are other interesting facets, including a tortious interference claim.  For more, see here.

Posted by Lyrissa Lidsky on May 11, 2011 at 10:01 AM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Friday, April 29, 2011

My New Exam Rule

I should have come to this resolution earlier, but I have finally figured out (after only 17 years) something noteworthy about exams: Exams should be either time pressured or space pressured, but not both. If they are both, students tend to feel that they didn't get to show you everything they know, even if we professors realize that these factors don't really make much difference in a student's overall performance, since every student takes the exact same exam. [If you are one of my students reading this post, and you took an exam that I wrote that was both time and space pressured, I realize that my new resolve won't be much consolation to you.] 

Posted by Lyrissa Lidsky on April 29, 2011 at 08:48 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (15) | TrackBack

Wednesday, April 20, 2011

Hiring Season Begins Anew

My colleague Elizabeth Lear and I are chairing the Appointments Committee at the University of Florida Levin College of Law for the 2011-2012 academic year. We have a variety of curricular needs, so be on the lookout for the official announcement in the next few weeks.  

Posted by Lyrissa Lidsky on April 20, 2011 at 03:14 PM in Getting a Job on the Law Teaching Market, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Friday, April 08, 2011

Texas Tech's Forthcoming Symposium Edition: Criminal Law & the First Amendment

Texas Tech Law School and the Texas Tech Law Review held a wonderful symposium today on Criminal Law and the First Amendment. The Review will be publishing articles from the symposium in its forthcoming edition.  Participants in the symposium included Erwin Chemerinsky, Michael Kent Curtis, Scott Powe, William Van Alstyne, Ellen Podgor, Nadine Strossen, Frank Ravitch, Bill Marshall, Arnold Loewy, Jesse Choper, Eric Segall, Kevin Saunders, Russell Weaver, Gene Nichol, Burt Neuborne, and Lyrissa Lidsky.  I was very impressed with the law school's students, faculty, and facilities, and Professor Loewy deserves great praise for organizing such a remarkably stimulating symposium.  Keep an eye out for the published articles!

Posted by Lyrissa Lidsky on April 8, 2011 at 11:44 PM in Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Hit Lists: Cyber Incitement, Cyber Threats

    As a resident of Gainesville, Florida, incitement has been on my mind lately.  Is the Internet a game-changer for the law of incitement and/or "true threats"? When Gainesville pastor Terry Jones recently burned a Quran and put the video on the Internet, it was specifically foreseeable that violence would result, even though inciting violence was not his purpose. And First Amendment law makes it almost impossible to hold Jones legally responsible for the violent response of his audience. First Amendment law typically assumes (regardless of evidence to the contrary) that audiences will behave rationally and not leap to violence when confronted with offensive speech.  Instead, offended audience members will engage in counterspeech to drive "noxious doctrine" from the marketplace of ideas.  The Jones incident, however, raises the question whether the ideals that underlie current First Amendment doctrine are foundering on the shoals of the new reality the Internet creates. 

   Another recent case raises more directly than the Jones incident the question whether First Amendment principles and doctrines governing incitement and true threats need to be adapted  in light of the unique dangers of Internet speech. In December 2010, blogger and occasional radio talk show host Hal Turner was convicted of threatening to assault or murder three federal judges based on a blog post stating that they "deserved to die" for affirming dismissal of a challenge to a handgun ban. "The postings included photographs, phone numbers, work address, and room numbers of these judges, along with a photo of the building in which they work and a map of its location." [FBI Press Release]  Turner's attorney evidently plans to appeal.

 Although the Turner case was tried as a "true threats" case, the speech involved fits at least as squarely into the legal definition of "incitement."  The line between true threats and incitement is not always clear.  In Virginia v. Black, 538 U.S. 343 (2003), a plurality of the US Supreme Court defined "true threats” to "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat." True threats are not protected by the First Amendment because they engender fear and intimidation and disrupt the lives of victims.  Incitement, by contrast, involves advocacy "directed to inciting or producing imminent lawless action" that is "likely to incite or produce such action." Incitements are unprotected because they create a likelihood of violent actions, not because of the fear they engender.

    Put (overly) simply, the distinction between a threat and an incitement is as follows. A threat involves a speaker saying to a victim: "I will do you harm."  Whereas, an incitement involves a speaker saying to third parties: "You ought to harm someone (or some thing)." This distinction gets blurred, however, in a case like Turner's.  Turner's statement was arguably designed to create fear and intimidation in the three federal judges against whom it was directed and to cause them to change how they ruled in future cases.  However, it was not clear that Turner contemplated personally doing violence to the judges.  Instead, his speech was aimed at persuading a third party to do violence to the judges "on his behalf," so to speak. His speech deserves censure (moral certainly, legal arguably) because it magnifies the risk of violence by unidentified third parties, and the risk is undoubtedly greater because the speech took place on the Internet.

     But would it meet the constitutional test for unprotected incitement?  Brandenburg v. Ohio arguably would prevent convicting a defendant like Turner for incitement, unless the contours of current doctrine are dramatically altered to fit the Internet context. Brandenburg provides strong protection for advocacy of violence by  radical dissidents like Turner, and it is a proud pillar of American First Amendment jurisprudence precisely because it sets an extremely high bar to imposing liability in incitement cases. The speech in Brandenburg, though, is completely despicable. There, the Supreme Court defended the right of a hooded Ku Klu Klan speaker to exhort his audience to "[s]end the Jews back to Israel," and to "[b]ury the niggers." This speech took place at an "organizers' meeting" of the Klan, at which some of the attendees were clearly armed. The Supreme Court nonetheless found the speech to be protected by the First Amendment.

    In striking down Ohio's prosecution of the Klansmen for advocating criminal activity, the Court stated that the First Amendment does not allow "a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  In order for a speaker to be prosecuted for incitement, therefore, the State must show (1) intent to incite another; (2) to imminent violence; and (3) in a context that makes it highly likely such violence will occur.  Brandenburg's test appreciates the fact that the State is likely to over-predict violence from speech, and it seek to ensure that suppression is not based on fear or dislike of radical ideas or speakers.

    The main obstacle to convicting Internet speakers under Brandenburg is the imminence requirement.  Brandenburg's imminence requirement was designed around the speech situation it presented: a firebrand speaker trying to rally a crowd in a physical setting.  Brandenburg contemplates liability for speakers in those rare instances where a "mob mentality" is especially likely to take hold and lead to violent action.  The paradigm case for Brandenburg, then, is a speaker exhorting an angry torch-wielding mob on the courthouse steps to burn it down immediately. It is only in such cases, where there is no time for "evil counsels" to be countered by good ones, that advocacy of violence crosses the line into incitement.

    Brandenburg's sanguine attitude toward the prospect of violence rests on an assumption about the audiences of radical speech.  Brandenburg assumes that most citizens (even Ku Klux Klan members) simply are not susceptible to impassioned calls to violent action by radical speakers.  In fact, Brandenburg represents the fruition of a libertarian theory of free speech planted by Justices Oliver Wendell Holmes and Louis D. Brandeis in a series of mostly dissenting opinions brought against social radicals following World War I. As I've discussed elsewhere, that theory makes several assumptions about the likely "audiences" of potentially inciting speech. The most fundamental assumption is that these audiences are typically composed of rational beings who will not leap to violence simply because radical speakers urge them to do so. Not only is the audience assumed to be rational and skeptical, but they are also assumed to be willing and motivated to engage in public discourse to refute dangerous falsehoods or "noxious doctrine."  

Cyber incitement represents a challenge to the rational audience assumption underlying incitement doctrine (and much of First Amendment law).  Audiences in cyberspace arguably differ from audiences in "real space" in ways that justify changing our assumptions.  How is cyber incitement different than incitement in "real space"? One of the main problems identified by scholars is audience size.  Initially, it might seem that size ought not to matter, but here's what the size complaint really means. If you magnify the potential audience, you magnify the chance that the speech will reach an audience member who is NOT rational and NOT willing to listen to counterspeech that defuses the violent advocacy of its dangers.  This prospect is heightened by the technology of search; cyber audiences searching out violent advocacy on the Internet may be searching for confirmation of their own violent plans or projects and may be especially impervious to counterspeech even if it were immediately available, which it is not.  [It is also worth mentioning that Internet speech crosses geographical borders into communities where counterspeech is not the norm.]

A related argument is that cyber audiences may be more susceptible to indoctrination and exhortations to violence than the audience envisioned by Brandenburg.  [Let's remember, however, that Brandenburg involved a Klan rally!]  Certainly the Internet enables subcommunities of hate to flourish, and interactions within these subcommunities may serve to "normalize" violence.  These communities are supported by the anonymity the Internet enables, and the speed of Internet communications allows speakers to reach individual audience members at the point when they are most vulnerable to calls for violent action. 

Finally, audience members in "real space" are "connnected" to one another and thus can exert a restraining influence on the individual who is spurred to violent actions by the words of a fiery speaker. Brandenburg contemplated the dark side of crowd behavior and specified that incitement can occur when a mob mentality is likely to take hold; the flipside of "mob mentality," however, is that audiences--even audiences of Klansmen--rarely react with immediate violence to impassioned rhetoric, which sends a signal to those individuals who would undertake violence if left to their own devices.   The moderating influence of crowd response cannot take place in cyberspace, which is yet one more reason that cyber incitement may indeed justify a different legal response than incitement in real space.

That said, I am generally skeptical of legal doctrines that assume the worst of audiences, especially in light of the tendency of governments to overstate the link between speech and violence.  If the imminence requirement is to be replaced in cyber incitment cases, it should be replaced by a requirement that still tips strongly against suppression of threatening hyperbole directed toward public institutions or public officials. 


Posted by Lyrissa Lidsky on April 8, 2011 at 08:45 AM in Blogging, Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky, Weblogs | Permalink | Comments (1) | TrackBack

Thursday, March 24, 2011

Tech Tech Symposium on Criminal Law & the First Amendment

Texas Tech Law School and the Texas Tech Law Review are holding a symposium on April 8 that focuses on Criminal Law and the First Amendment.  I'll be speaking on Cyber Incitement on a panel entitled The First Amendment, the Internet, and Criminal Law.  I'm very honored that Professor Arnold Loewy asked me to attend this distinguished symposium, not least because I get to return home to West Texas for a weekend and perhaps consume some great Mexican food or a nice chicken fried steak.  Lubbock is just a few hours from the dusty and desolate West Texas oil field town of Iraan, Texas, where I grew up.   [Iraan has literary cred. It is mentioned in a sentence in the last few pages of Cormac McCarthy's All the Pretty Horses.  Larry McMurtry doesn't mention Iraan, but he captures the feel of it in the towns he describes in books like The Last Picture Show and Duane's Depressed.]


Posted by Lyrissa Lidsky on March 24, 2011 at 01:02 PM in Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Monday, March 21, 2011

Academic Satire Recommendations

It is possible that you are at that point in the semester, or in your career, when you are in need of academic satire in literary form.  Although many would recommend Lucky Jim by Kingsley Amis, it has scenes of gratuitous cruelty in the beginning chapters that I can never get past. [I feel the same way about certain episodes of Seinfeld involving George or most episodes of Curb Your Enthusiasm.] It does contain a brilliant description of a hangover, though. Some would recommend Jane Smiley's Moo, which has a brilliant opening chapter but doesn't follow through.  Instead, I prefer David Lodge's Changing Places, which has a brilliant scene about a "rising star" English professor whose tenure prospects are scuttled when he admits during a drinking game at a faculty party that he's never read Hamlet.  I also love Richard Russo's hilarious Straight Man, which captures the inanity of (certain) faculty meetings perfectly.   

Posted by Lyrissa Lidsky on March 21, 2011 at 07:42 PM in Books, Lyrissa Lidsky | Permalink | Comments (11) | TrackBack

Internet Freedom

Here is a review of Evgeny Morozov's The Net Delusion and Tim Wu's The Master Switch  from the New York Review of Books that makes me want to run out and buy the latter immediately.

Posted by Lyrissa Lidsky on March 21, 2011 at 07:26 PM in Books, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Wednesday, March 16, 2011

Public Forum 2.0

If you are interested in social media and/or the First Amendment, you might be interested in the article I just posted on ssrn.  The abstract is below, and the link is here.

Abstract: Social media have the potential to revolutionize discourse between American citizens and their governments. At present, however, the U.S. Supreme Court's public forum jurisprudence frustrates rather than fosters that potential. This article navigates the notoriously complex body of public forum doctrine to provide guidance for those who must develop or administer government-sponsored social media or adjudicate First Amendment questions concerning them. Next, the article marks out a new path for public forum doctrine that will allow it to realize the potential of Web 2.0 technologies to enhance democratic discourse between the governors and the governed. Along the way, this article diagnoses critical doctrinal and conceptual flaws that block this path. Relying on insights gleaned from communications theory, the article critiques the linear model underlying public forum jurisprudence and offers an alternative. This alternative model will enable courts to adapt First Amendment doctrines to social media forums in ways that further public discourse. Applying the model, the article contends that courts should presume government actors have created public forums whenever they establish interactive social media sites. Nevertheless, to encourage forum creation, governments must retain some power to filter their social media sites to remove profane, defamatory, or abusive speech targeted at private individuals. Although some will contend that ceding editorial control is no more necessary in social media than in physical forums, the characteristic "disorders" of online discourse, and particularly the prevalence of anonymous speech, justify taking this path.

Posted by Lyrissa Lidsky on March 16, 2011 at 04:20 PM in Article Spotlight, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack

Monday, March 07, 2011

Fill in the Blank Scholarly Productivity

In gauging scholarly productivity, a book is worth ___ law review articles.


The back story: A colleague and I were discussing this topic, and my answer was two and the colleague's was five.  Upon discussion, we agreed that it mattered whether the book was assembled from previously published articles or whether it was "from scratch," and I revised my answer of "two" up a bit.  On further reflection, I realized that my initial answer diverged so much from my colleague's because my (outdated, misguided?) conception of a law review article is still based on the ideal of what (I thought) they were supposed to be when I started teaching long ago: namely, a mini-book of 50-100 pages that answers every question one can conceive about one's chosen topic. In fact, I found myself criticizing an article recently because it only defined "the problem" and didn't provide "the solution," though it promised to provide one in a future article.  Though it was a very good piece, it seemed to me like only half an article rather than a whole. Was I wrong? [It seems so.]

After more reflection on "productivity" (which is surely a scholarly term of art) , I had more questions. Is it nonsensical to try to gauge productivity by measuring the numbers of pages written or amount of time spent writing?  Shouldn't we gauge productivity by actually reading the works in question to try to decide how much they "count"? Are we uncomfortable with "quality" measures because they are too subjective, especially where the scholarship lies outside our own area of competence?  Is "productivity" somehow a matrix of quantity and perceived quality? Should one good article count more than three mediocre ones (assuming we could agree what "good" is)? Are citation counts a better measure of what we mean by productivity than number of articles published? Have most faculties reached consensus on these issues?

Posted by Lyrissa Lidsky on March 7, 2011 at 05:41 PM in Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (9) | TrackBack

Wednesday, March 02, 2011

Snyder v. Phelps Decision Alert

Today the U.S. Supreme Court held 8-1 in Snyder v. Phelps that the state could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased soldier Matthew Snyder, at least where "Westboro addressed matters of public import on public property in a peaceful manner, in full compliance with the guidance of local officials."

At first glance: The decision contains an important discussion of how to distinguish speech of public concern from speech of purely private concern.  The decision defines public concern broadly to encompass the Westboro Baptists Church's commentary on the "political and moral conduct of the United States and its citizens. . . ."  Procedurally, the Court clarifies that courts must "make an independent examination of the whole record" to evaluate whether the speech is of public concern. (7-8). Alito's dissent stresses several times that the plaintiff in the case was a private figure "brutalize[d]" by speech on a matter of private concern.

Posted by Lyrissa Lidsky on March 2, 2011 at 01:26 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (9) | TrackBack

Monday, February 21, 2011

Perfectionism is the Enemy of Productivity

Here is some excellent advice from The Chronicle of Higer Education on writing and productivity.  The short version is this: perfectionism is the enemy.  Why did I have to learn this lesson the hard way? And why do I have to keep relearning it?

Posted by Lyrissa Lidsky on February 21, 2011 at 06:36 PM in Lyrissa Lidsky | Permalink | Comments (2) | TrackBack

Professionalism and Student Complaints About One's Colleagues

I know that it is almost never professional nor wise to listen to student complaints about my colleagues. Yet students often want to tell me, indeed seem compelled to tell me, how bad a teacher Professor X is or what a terrible thing Professor Y said in class.  The conversation always has a flattering subtext, to wit, "you're not like Professor X nor Professor Y."  The question, then, is how to divert the conversation to a different topic without making the student feel uncomfortable.  Though I love a good bit of gossip as well as (and maybe better than) the next person, it is simply not a good idea to indulge in this kind of conversation.  I sometimes try to counteract the criticism by pointing out how much my colleague knows about his/her subject matter or how much my colleague really does care about students. Other times, I will say "I can't speak about my colleague" or I will literally stick my fingers in my ears and say "la, la, la" loudly to indicate, in a light-hearted manner, that I cannot be party to that kind of conversation.  Are there any better tricks to deal with this problem?  Over time, I inevitably end up hearing things about my colleagues, and, although I am highly skeptical of individual stories taken out of context, I have formed opinions about the teaching abilities of my colleagues based on hearing the same kinds of criticisms from students over and over again over a sustained period of time. Unfair, or inevitable?

Posted by Lyrissa Lidsky on February 21, 2011 at 10:15 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (16) | TrackBack

Tiger Mother Book Club

I was delighted to be one of the participants in Conglomerate blog's book club on Battle Hymn of the Tiger Mother.  My contribution is here.

Posted by Lyrissa Lidsky on February 21, 2011 at 10:13 AM in Books, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Sunday, February 13, 2011

An Intervention: What Not to Write

I am conducting an intervention in which both the intervenor and the intervenee are one.  I am notoriously slow at learning from my past mistakes, but I am going to try to make up for it by posting a list of writing projects to which neither you nor I should ever say yes in the future. 

1. Do not agree to write anything that requires you to learn a different style manual. Yes, I know you will ask yourself, "how hard could it be to learn APA or MLA style?"  The answer is: harder than you think. You will waste a lot of time learning something that will not come in handy later, and in the same period of time, you could have written a law review article.  So just write the law review article. 

2. Do not agree to write a paper (or give a talk) unless it fits in with your pre-existing research agenda. Your likely response to this rule will be one of two arguments.  First, you will say, "but it won't take much time and it will be a good experience."  The response is that it will take longer than you think because everything takes longer to write than you think it will when you agree to it.  And while it is taking so long, it will cease to be a "good experience" because it will be preventing you from fulfilling your research agenda. Your second response will be, "but I'm really interested in the topic."  So what? You are "really interested" in forty different topics, including the ones that fit into your pre-existing research agenda.  So write on one of those topics instead, especially if your research agenda involves a timely topic.  [As I write this, I' m trying to steel my resolve NOT to write about hot news misappropriation when I should be writing about social media speech issues.]

3. Do not agree to a co-authorship unless there are clear rules of engagement and you know the co-author well and have similar writing styles and work habits. 

a. Rules of engagement: I have been involved in co-authorships in which it was clear from the outset that I had the last word (when writing with students, for example) and in which it was clear from the outset that I didn't (when writing with a senior co-author while I was untenured). Both worked, though I bridled at the latter.  I've also been involved in successful co-authorships where the general outline was reached collaboratively, but each of us had autonomy in writing our parts.  That worked well, too, especially where I did not have strong opinions about the other parts.  What does not work well are co-authorships in which one person is all take and no give; she expects all of her feedback to be heeded but will not heed any of the feedback she receives.  That is the kind of co-authorship that will take years off your life. Co-authorships also do not work well if your philosophical approach to the subject is completely different than your co-author's, which is why you have to know your co-author well enough in advance to know what her approach is.  If you are already in a co-authorship that violates one of these rules, consider whether it makes sense to continue or cut your losses.

b. Work habits & writing styles: The most unpleasant co-authorships involve mismatched writing styles or work habits.  I am a slow writer, often painfully slow, but I do respect deadlines and try my hardest to meet them, mostly successfully.  I try to deliver drafts in the most polished form I can manage.  I do not enjoy working with someone who tosses off a draft in a week that actually looks like a draft (rather than a polished final product).  I also do not want to work with a prolix co-author. I believe you should never use two sentences when one will do, and one of my highest aims is to explain complex ideas in a way that any educated person can understand them.  In addition, there are a number of writing habits I deplore.  I cannot respect writers who employ "utilize" instead of "use", I despise the use of "impact" as a verb, and I don't like gratuitous jargon.  If these things are negotiable, the co-authorship is not for me.  The larger lesson, though, is that you have to know your own writing habits and preferences well enough to know what you can tolerate in a co-author and what you can't.

4. Do not agree to write a casebook unless you are prepared to make it a part of your writing life for the foreseeable future. Casebooks require yearly updates, which take up at least a week every summer.  You'll also have to rewrite the whole thing every five years or so. A casebook is not a fling; it is a serious commitment, and not one to be undertaken lightly. [This rule may nix that Advanced Torts casebook I've been thinking about.]

5. Do not agree to write anything just because it will be easy and won't take up much time.  It won't and it will. 

I have learned from painful experience that the opportunity costs of some writing projects are too high to justify them.  Now if I can just put these lessons into practice . . .




Posted by Lyrissa Lidsky on February 13, 2011 at 11:08 AM in Lyrissa Lidsky | Permalink | Comments (9) | TrackBack

Saturday, February 05, 2011

A Libel Proof Defendant? Courtney Love's Twitter Defamation

The Twitter defamation suit against celebrity Courtney Love , ostensibly the first of its kind, is set for trial next Wednesday (February 9, 2011) in California.  The suit arose after Love got into a tangle with the Boudoir Queen, a fashion designer also known as  Dawn Simorangkir.  Simorangkir accepted some of Love's clothing to "transform" into designer dresses, but Love was unsatisfied with the end product and refused to pay. To add insult to injury, Love posted allegedly defamatory statements about the Boudoir Queen on Twitter, MySpace, and

Love tweeted, inartfully, that “ police are morethan ecstatic to pick [Simorangkir] up she has a history of dealing cocaine, lost all custody of her child, assault and burglary.” [The errors are Love's.] (Complaint ¶ 24(b)). Love also wrote, “so goodbye asswipe nasty lying hosebag thief,” as well as “… my clothes my WARDROBE! oi vey don’t fuck with my wradrobe or you willend up in a circle of sorched earth hunted til your dead.” Love made similar statements on feedback forums on MySpace and At the time Love's tweet went online, she had an estimated 40,000 Twitter followers.

In response to Love’s “feedback,” the Boudoir Queen sued for libel. Love’s attorneys responded to the complaint by claiming that Love was merely warning others about “Simorangkir’s pattern of criminal and bad faith conduct” (Defendant Love's Special Motion to Strike). Love’s attorneys argued that Love acted in the “public interest” by using social media to warn others of her experiences. The California court, however, denied Love's motion to strike and found that the dispute involved not an issue of public interest but rather “a discrete private dispute between Love and Simorangkir.” The court also rejected the argument that the defamatory statements concerned matters of public interest simply because Love is a celebrity, since “under that theory, no celebrity could ever be found liable for defamation."

Besides being the first Twitter-based defamation suit to reach trial, Love’s suit poses some intriguing legal issues. As a result of our society’s commitment to free speech, a speaker cannot be held liable for expressing her opinion. Opinion, however, is a legal term of art, and refers to statements that are unverifiable or cannot be interpreted as stating actual facts about the plaintiff. Hyperbole, for example, is not actionable as defamation. In a 140-character tweet, however, the speaker has little chance to clarify her meaning and provide relevant context that might establish her tweet as hyperbole.  In Love’s case, she is well known for her “over the top” behavior in general, perhaps indicating her followers on Twitter might expect the kind of hyperbole that is clearly present in her tweets. Of course there is no such thing legally as a libel-proof defendant (nor should there be), but this case does make one question whether any reasonable person could possibly give credence to anything she said, factual sounding or not.  Love provided a series of tweets that may have alerted some audience members to the context of her dispute with the Boudoir Queen, but it is an open question whether the tweets should be read together to establish the “context” supporting her statement that the Boudoir Queen was a “lying hosebag thief.” Certainly Love’s accusations of criminality seem to indicate that she has undisclosed (and potentially false) factual information, which certainly makes it harder (or likely impossible) for her to shield her statements under the mantle of opinion. Moreover, there is an argument that a defamatory statement in a single tweet (not the issue here, admittedly) should be treated like defamation in a headline that is refuted by an accompanying article not likely to be seen by most reasonable readers of the headline.  Regardless of what happens if the Love case actually goes to trial on Wednesday, the saga is instructive about the perils of assuming that one can vent one’s frustrations about another in social media without legal repercussions.

Posted by Lyrissa Lidsky on February 5, 2011 at 06:27 PM in First Amendment, Lyrissa Lidsky, Torts, Web/Tech | Permalink | Comments (6) | TrackBack

Monday, January 31, 2011

A Small-Town, Social-Media Parable

    My co-author Daniel Friedel and I  just finished a book chapter for a book called Social Media: Usage and Impact (Hana Noor Al-Deen & John Allen Hendricks, eds., Lexington Books, 2011). In the course of writing the chapter, I came across Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (Cal. App. 2009), a case I had somehow missed when it came out. The Moreno case is a cautionary tale about the dangers of engaging in undue self-revelation online, but that is not the only reason I find it fascinating.  I find it fascinating because I grew up in a small, remote town, and I am acutely aware of the social dynamics that underlie the case.

    Here are the facts. While Cynthia Moreno was a college student at Berkeley, she visited her hometown of Coalinga, California. Moreno subsequently published on her MySpace page a very negative “Ode to Coalinga,” in which she stated, among other things, that “the older I get, the more I reliaze that I despise Coalinga.” (1128) The principal of Coalinga High School obtained the Ode and forwarded it to a local reporter. After publication of the Ode in the local newspaper, Cynthia Moreno’s family received death threats, and a shot was fired at their home. They were forced to move away from Coalinga, abandoning a 20-year-old business. (1129). They sued the principal and the local newspaper for invasion of privacy and intentional infliction of emotional distress. The trial court dismissed the case against the newspaper under a California's antil-slapp  statute. The Moreno family did not appeal the ruling regarding the newspaper, but they did appeal the trial court’s dismissal of their claims against the principal for invasion of privacy and for intentional infliction of emotional distress. (1129).

    With regard to the privacy claim, the California appellate court held that the revelations concerning the Ode simply were not "private" once Cynthia Moreno posted them on MySpace, “a hugely popular internet site.” (1130). The Court found, in essence, that Cynthia had waived any reasonable expectation of privacy through her "affirmative act." (1130). It was immaterial to the court that few viewers actually accessed Moreno’s MySpace page. By posting it, she opened her thoughts to “the public at large,” and “[h]er potential audience was vast” regardless of the size of the actual one. As Cynthia learned to her sorrow, there is no privacy invasion when information shared with a seemingly “friendly” audience is repeated to a hostile one. (1130). [Query, however, whether this could lead to a false light claim in the right circumstances.]  Although the court dismissed Cynthia's privacy claim, the court held open the possibility that a claim for intentional infliction of emotional distress could succeed. (1128). 

    The Moreno case sends a mixed message about legitimate use of information shared in "public" social media. On one hand, the information is not private. On the other, republication can still lead to liability if done for the purpose of inflicting emotional distress on another in a manner that jurors might subsequently deem “outrageous.”  At first blush and maybe at  second, too, this latter holding regarding intentional infliction (the court left its reasoning unpublished) seems inadequately protective of speech.  After all, the principal was merely republishing lawfully obtained truthful and non-private information, arguably about a matter of local significance.  The principal had no "special relationship" (protective, custodial, etc.) with Cynthia Moreno that might have imposed on him a duty to give special regard to her interests or emotional well-being.  It seems from the facts, however,that Cynthia's younger (minor) sister might have been attending the high school of  which the defendant was principal, which perhaps could make his actions more "outrageous." Moreover,  how much solicitude should be given to a defendant such as the principal if his intent in publishing the statement was to ensure the ostracization of Cynthia and her family, or even if he acted with reckless disregard that those consequence would result? Of course, the statement need not have been published in a newspaper in order to produce a similar result.  In a town of fewer than 20,000 residents, the gossip mill very well might have ensured that the information got to those most likely to be interested in it. Moreover, if the principal could foresee harm to Cynthia through the gossip mill, arguably so could Cynthia (even if the scope and exact manner in which those harms would occur were unforeseeable). After all, she did grow up there and should have known, even at 18 years old or especially at 18 years old, how vicious the repercussions might be if her Ode got out.  I feel great empathy for Cynthia, but I do worry about the free speech implications of giving a tort remedy based on the repetition of lawfully obtained, truthful, non-private information, even when done with bad motives.

Posted by Lyrissa Lidsky on January 31, 2011 at 12:06 PM in First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech | Permalink | Comments (0) | TrackBack

Wednesday, January 05, 2011

The First Amendment Politics of the Roberts Court (A Panel Discussion)

Mary-Rose Papandrea has organized and is moderating an AALS panel for the Section on Mass Communication Law entitled The First Amendment Politics of the Roberts Court.  I will be speaking on the panel along with Erwin Chemerinsky  and Eugene Volokh.   We will be discussing, among other things, whether there is unifying theme among the First Amendment decisions of the Roberts Court and what the Court's decisions signify for the future of First Amendment jurisprudence.  The panel will focus predominantly on free speech and press issues in the Roberts Court.  I know I'm not ruining the suspense by saying there will be discussion of the Citizens United decision, but Garcetti v. Ceballos, Humanitarian Law Project v. Holder, CLS v. Martinez, US v. Stevens, US v. Skilling, Doe v. Reed, Morse v. Frederick, and the pending cases Snyder v. Phelps and Schwarzenegger v. Entertainment Merchants Ass'n are also likely to merit discussion.  The panel is on Saturday at 10:30 at the Parc 55 Wyhdham (Sutro, 2nd Floor).  (A brief preview of some of the remarks I expect to make is below.)

I have not finalized my remarks, but one contention I expect to make is that the Roberts Court appears to take seriously the notion that speakers are entitled to all the free speech they can afford.   I've been thinking of the theory underlying many of the free speech decisions as a kind of highly formalistic libertarianism.  The Court appears to believe strongly that the First Amendment forbids government interference with the marketplace of ideas produced by private ordering.  Absent personnel changes, this is not a Court that is going to favor structural intervention in the marketplace of ideas to fix market failures.  All speakers, whether individuals or organizations, are treated equallly to the extent they are free from government regulation of their speech; however, speakers who lack resources are not entitled to any government assistance in speaking, and the government does not need to show much solicitude for speakers on its payroll or attending its schools.  Another interesting facet is that the government itself is entitled to participate as a speaker in the marketplace, with little or no concern for whether its voice might drown out that of other speakers.  The theory is formalistic in the sense that the Court seems to treal all "inputs" into the marketplace of ideas equally, regardless of real inequalities or imbalances of power among them.

I plan to explore what implications the Court's formalistic libertarianism has for the future of broadcast regulation and the treatment of new media speakers.  I also want to address US v. Stevens (the dog fighting video case) and the Court's seeming unwillingness to reopen the categories of speech "unprotected by the First Amendment," though I'm still struggling to fit the case into the broader themes of the Court's jurisprudence.  And I doubt if I'll be able to resist discussing Snyder v. Phelps (the Westboro Baptist Church funeral protest case), which deals with my favorite legal intersection (of tort law and the First Amendment).     


Posted by Lyrissa Lidsky on January 5, 2011 at 10:20 AM in Constitutional thoughts, First Amendment, Law and Politics, Lyrissa Lidsky | Permalink | Comments (2) | TrackBack

Friday, December 31, 2010

Prawfish New Year's Resolutions

I am interested to hear the New Year's resolutions of my fellow law professors.  Inspire me!  For many years I believed New Year's resolutions were a waste of time, but I now welcome the chance to reflect on whether I'm doing what I ought to be doing.   I also believe that making your commitments public helps you meet them.  So here are mine. 

Last year I resolved to give more presentations, meet more people in my field, and be less sheepish about promoting my work.  I've made some progress on those resolutions, though I can always do more.  This year, I resolve to write faster by being more organized and planning my writing projects so they build on one another.  It slows you down when you try to reinvent the wheel every time you start a new project.  Luckily I've finally found a subject that I want to write about over and over until I understand every aspect of it, and I'm hoping that focusing on this subject will  help me achieve my resolution.  However, I will also have to learn to say no when I'm invited to engage in activities or writing projects that don't advance my goal.  I've never been good at saying no (in a professional context!!), especially if the invitation includes a little flattery.  I am going to try to be more disciplined and think about the opportunity costs of letting my scholarly agenda be dicated by the invitations I receive. 

I have a few more simple professional resolutions for the New Year.  I want to include mid-course quizzes in my upper-level classes because I have been very happy with the effect they have had in Torts.  I want to learn as much about the state of law practice today as I can so that I can give students good advice and train them properly.  I want to serve on a university-wide promotion and tenure committee so that I can understand the system better and give better advice to untenured law professors.  I'd like to see if I'm capable of raising money, in case I ever want to be a law school dean.   

From a work-life balance perspective, I hope to encourage more UF law students to join our law school running and walking club.  As an overcommitted working mother, the club has been a godsend for me and has had a number of unintended positive consequences.  I've really gotten to know a number of students on a personal level that I might never have known otherwise, which is immensely rewarding.  You learn as a teacher that you can't make a difference for every student, but you can  make a difference for some, and it is easier to do that if you really get to know them.   Even more significantly, perhaps, I've seen students making valuable connections with each other that they wouldn't otherwise make.  How often do 1Ls get to connect with 3Ls in a meaningful way in law school?  (If you are in Gainesville, Florida come run with us.  Information is always available on the student-created Facebook page called Running with Lidsky)      

Finally I resolve, again on the work-life balance front, to try to make a greater separation between work life and home life.  My sons are 12, 9, and 6, and they all seem to be at pivotal moments in their lives for different reasons.  I'm grateful and proud to have a professional career that I love, but I'm sorry to say I sometimes find myself working or being consumed emotionally by work issues when I should be focusing solely on my sons.   (Like New Year's Eve?)

Please share your resolutions.  I promise to find them fascinating.



Posted by Lyrissa Lidsky on December 31, 2010 at 08:17 PM in Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Saturday, December 25, 2010

Defamed Law Profs Win $5.2 million Against West Publishing

Here's a report of a  defamation win by two law profs against West Publishing that seems,  well, a little excessive based on the reported facts.  According to the report, the defamation claim was based on false attribution of authorship of a poorly done pocket part.  I guess the profs didn't buy the argument than any publicity is good publicity.  I'm dying to know more, because there must have been more for the verdict to have been this large.  The plaintiffs were David Rudovsky and Leonard Sosnov. 

Posted by Lyrissa Lidsky on December 25, 2010 at 09:00 PM in Criminal Law, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Friday, December 10, 2010

Wikileaks and TMI: A Scholar's Perspective

I've been feeling guilty for not blogging about Wikileaks after the release of diplomatic cables (see my earlier post here).  The problem is that the story is so rapidly evolving, and I've been so busy (it is, after all, THAT time of year), that I didn't want to weigh in and just duplicate the thoughts of others or sound off in a way that betrayed a lack of understanding of all the factual nuances of the case.  I'll just have to content myself with providing a link to  Daniel Drezner's piece in The Chronicle of Higher Education, which deals with some aspects of the brouhaha I've also been thinking (but not writing) about.  I've been thinking about how journalists cope with the sudden dumping of thousands of pages of disjointed information (which, despite its volume, may not really be "ALL" of the information).  What happens when you have too much information, rather than not enough?  Does it make the role of a learned intermediary sorting through thousands of pages of raw data and putting them in context more important rather than less?  Are journalists equipped to perform this role?

Drezner's piece recognizes the problem of  TMI from a historian's perspective and worries about getting "caught out" by a document release that suddenly casts a different light on the intent of policymakers than one could glean from the events themselves.  Drezner also considers what the Wikileaks controversy means for the future of government secrecy.  He frets that government will significantly tighten the clamps information in the future in response to the controversy.  On this point, I suspect his fears are misplaced.   The Wikileaks controversy reveals that even if the government wishes to exercise more control over information in the future, it simply can't.  [Admittedly, though, I still fail to see how Bradley Manning had access to so much information, apparently without much oversight (assuming those are the facts).]   

Posted by Lyrissa Lidsky on December 10, 2010 at 10:29 PM in Blogging, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack

Sunday, November 28, 2010

Transparency, Anonymity, and Internet Threats Against Children

 A new case from the U.S. Ninth Circuit Court of Appeals pits the public interest in open and "transparent" legal proceedings against plaintiffs' rights to proceed anonymously when they fear retaliation.  This case, Doe v. Kamehameha Schools, 596 F.3d 1036 (9th Cir. 2010), is  unusual because the would-be Doe plaintiffs are children who fear for their safety predominantly as a result of invective and abuse posted on the internet.  This decision is noteworthy for a number of reasons (discussed below), not least of which is its discussion of the complicated task of evaluating anonymous threats on the internet.


In Doe v. Kamehameha Schools, four children in Hawaii sued the Kamehameha schools, claiming that the schools applied an admissions policy that violated their civil rights; the schools'  policy "grant[s] admission to any applicant with any amount of Native Hawaiian blood before admitting other applicants."  The children sued in federal court under 42 U.S.C. Sec. 1981 and moved for leave to proceed anonymously, contending that they  feared physical injury otherwise.  The children's attorney pointed to several pieces of evidence to support the motion to proceed anonymously.  First, the plaintiffs demonstrated the intense and angry public reaction to a prior civil rights lawsuit against the Kamehameha Schools.  Second, they brought evidence of anonymous threats of violence against the child plaintiff and attorney involved in the prior litigation against the Kamehameha Schools.  Third, they demonstrated that threatening language had been used in posts about their lawsuit, including statements that if they were admitted to Kamehameha, they were "jus gonna get lickins every day."  Another post stated that "one day" plaintiffs' "haole attorneys" would "be targeted by some crazy Hawaiian or group of Hawaiians armed with baseball bats or guns."  Finally, the plaintiffs brought evidence of hate crimes by Native Hawaiians against non-Native Hawaiians. 

A magistrate judge denied plaintiffs' motion to proceed anonymously, finding none of their evidence was sufficient to make plaintiffs objectively fear physical retaliation.  Indeed, the magistrate judge found that "[a]t most, Plaintiffs' evidence suggests they may be socially ostracized."  After a Hawaiian newspaper published a story on the ruling, more vitriolic comments were posted online, such as one that stated "Sacrifice them!!!!!!!!" and another that read "4 kids . . . will need 10 bodyguards lol."  Yet another stated the plaintiffs "would have to watch their backs for the rest of their lives."  The plaintiffs also pointed to a threatening phone call received by their attorney.   The magistrate judge  denied plaintiffs' motion to reconsider based upon this new evidence.  The district judge likewise determined that "the prejudice to the defendants and the public's interest in open courts outweighs plaintiffs' fears of harm."  As a result, the judge denied plaintiffs' motion to proceed anonymously and dismissed their case.

On appeal, a three-judge panel of the Ninth Circuit affirmed the dismissal of plaintiffs' claims, holding that "the district court did not abuse its discretion in determining that the Doe children do not reasonably fear severe harm."  In reaching this conclusion, the court stated that "the normal presumption in litigation is that parties must use their real names."  The court linked this presumption both to "the public's right to open courts, [ ], and the right of private individuals to confront their accusers."  However, the court also noted that the presumption that litigants must use their real names can be overcome by "balancing" five factors: "(1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, . . . (3) the anonymous party's vulnerability to such retaliation, (4) the prejudice to the opposing party, and (5) the public interest."  Id. at 3322 (citing Doe I Thru XXIII v. Advanced Textile, 214 F.3d 1058 (9th Cir. 2000). 

The court conceded that it was difficult to evaluate the severity of the threatened harm given the controversial nature of the case, "the recognized tensions between some Native Hawaiians and non-Natives in Hawaii, and the threats against the anonymous plaintiffs."  The court also noted that obscuring the identities of the plaintiffs in this case would not seriously impair the public's ability to evaluate the underlying issues in the case.   In fact, the refusal to allow the plaintiffs to proceed anonymously in this case prevented a resolution of the important legal issues they raised (!), because they decided to face dismissal rather than reveal their identities.  Nonetheless, the court found that the district court did not abuse its discretion in concluding that plaintiff had failed to show a reasonable fear physical retliation.  

The court closely examined the context surrounding the alleged threats against plaintiffs.  The court observed that the fact that the threats were posted on the Internet might make them "much more frightening" in light of previous "random acts of racial violence against non-Native Hawaiian children."  On the other hand, the court noted that "people say things anonymously on the internet that they would never say in another context and have no intention of carrying out."  (emphasis mine)  Even some of the posts that plaintiffs had cited as threatening contained language denying any desire for actual violence against the children.  The court also noted that a prior plaintiffs who had litigated against Kamehmeha Schools using their real names had faced no reprisals in school or out. 

The case is noteworthy for several reasons.  First, although the case involves child plaintiffs, the court places almost no emphasis on this fact and seems to evaluate the alleged threats they would face if their names were revealed the same way it would evaluate threats to adults.   Children are more vulnerable than adults, and arguably the balance between transparency and anonymity might be tipped more toward the latter when a child's safety is at issue.   In fact, Federal Rule of Civil Procedure 5.2(a) contemplates that minor litigants can routinely be identified only by their initials.  Nonetheless, the court did not address this rule, and the  fact that the case involved child litigants did not seem to affect its outcome.

Second, the court apparently believed that the only threat to the children that would justify allowing them to proceed anonymously was a threat of physical violence, even though the five-factor test the court applied seemed to contemplate other types of threats.  Perhaps the threat of  social or economic retaliation can never outweigh the interest in transparency; if so, I would have preferred that the court explain and justify this assumption, especially since it seems that the children in this case would have objectively reasonable fears of "severe" social retaliation, at a minimum. 

Third, the court did not evaluate the case under First Amendment law governing "true threats."  The court views the true threats case law as inapposite because it typically involves an injunction or other direct restriction against speech rather than an indirect threat to the public's right to know.  According to the court, the "true threats" cases set an even "higher bar to the finding of reasonable fear" than the five-factor balancing test they applied.  In this bit of dicta, the court places the First Amendment right to speak on a higher plane than the public's right of access to judicial information.  This relative weighting is hardly revolutionary, but it is nonetheless noteworthy that the standard for judging the reasonableness of a plaintiff's fear may be higher in one context than in the other.  

Fourth, and most fascinating to me, is the court's discussion of the  nature of internet threats.  Are internet threats more or less likely to create "reasonable fear" in their target than other kinds of threats?  The court addressed arguments on both sides.  The court acknowledged the argument that the anonymity of internet threats can make them more frightening.  The court did not elucidate, but there are several reasons a plaintiff might find internet threats more frightening.  Since the person making the threats is usually anonymous, s/he could be anyone anywhere, leaving plaintiffs with fewer means to protect against or avoid the makers of threats.  There is also the prospect that a person who makes an online threat will feel empowered by the vitriol of other speakers to carry out a violent act against plaintiffs in the real world.  Perusal of internet comments on a topic as controversial as affirmative action for native Hawaiians quickly gives one the feeling that there are lots of angry, intemperate and mean-spirited people out there; who knows what the match that lights the tinder will be?   Nonetheless, in First Amendment contexts, courts typically require a showing of more than speculation regarding the possibility of harm.  Indeed, the Ninth Circuit ultimately credited the argument that internet threats should be discounted precisely because the internet is a forum in which many people hide behind the cloak of anonymity to say things they have no intention of doing.  Again, the court did not really flesh out this discussion, but it seemed to buy into the notion that the internet can act as a safety valve for vitriolic venting about contentious public issues.  Hyperbole and exaggeration are common, and therefore the district court did not err in concluding that the threats to the children involved in this case were not serious.   [Shameless plug alert:  For extended examination of the benefits and harms of anonymous speech, see Lidsky, Silencing John Doe, or Lidsky & Cotter, Authorship, Audiences, and Anonymous Speech.]

Fifth, if you are a law professor in need of a case to illustrate to students why standards of review matter, this is a good one.  The court spends the whole last paragraph of the opinion emphasizing that if it were reviewing the case de novo, it might come out differently on the issue of whether the plaintiffs' fears of physical harms were reasonable. 

Finally, the decision spurred Judges Kozinski and Reinhardt to unite in dissenting from denial of plaintiffs' petition for rehearing en banc.  Judges Kozinski and Reinhardt both wrote strongly worded dissents accusing their colleagues of ignoring the physical and mental well-being of the children.  The members of the original panel--Beezer, Graber, and Fisher--responded to the criticisms of Kozinski and Reinhardt in a separate concurrence in the denial of rehearing en banc. 

Posted by Lyrissa Lidsky on November 28, 2010 at 01:14 AM in First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Monday, November 22, 2010

The Blogging Persona

Here is a beautiful essay by Carl H. Klaus from the Chronicle of Higher Education called The Put-Ons of Personal Essayists.  Although Klaus writes about how essayists invent a persona that seems "personal," I was struck by how applicable his insights are to blogging.

Posted by Lyrissa Lidsky on November 22, 2010 at 08:44 AM in Blogging, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Tuesday, November 09, 2010

Setting High Expectations

I am not a touchy-feely type, and when someone says she believes the universe is sending her messages, I tend to question her sanity. Nonetheless, I kept facing the same issue today over and over again in every imaginable context: how should I set my expectations--for my students, my colleagues, faculty candidates, my children, and myself--so that they are high but not unrealistically so?

I will spare you the full rundown of my day. Let me just present a few examples. Let us say hypothetically that your faculty is in the market to hire a new entry-level faculty member and that the prospective faculty member has written an article or the draft of an article. How should you (and your colleagues) judge her work? Should you judge it the way you would judge an untenured colleague's first tenure piece, or should you set a lower standard on the theory that the person's scholarship will improve when they join your faculty and receive mentoring? How harshly should you judge the candidate's writing style? If the article or draft indicates that the candidate is a mediocre writer, should you overlook that if she seems to have good ideas (perhaps on the theory that editors can be found to improve the problem)? Is it fair to criticize an article that a candidate wrote on nights and weekend while practicing law for not surveying the secondary literature or at least showing thorough familiarity with it? I tend to be quite critical of mediocre writing, but I am often willing to forgive a mediocre presentation. Are these the right standards to apply?  [By the way, I've seen numerous candidates both this year and over the last 16 years, so this is more an abstract question I've been asking myself as I see the annual parade of candidates than a question about a particular individual.]

Let me give another example. I believe that you insult the intelligence and abilities of your students if you don't set high expectations for them. I expect my students to be prepared, but I don't browbeat them if they're not. I just promise to call on them the next class period, and I try to remember to always follow through. Am I setting my expectations too low by not having more severe consequences? Or am I being unduly punitive by potentially causing embarrassment for the student who hasn't read? Have I struck the right balance with my policy? You never know what is going on in the personal lives of any of your students. Perhaps you just called on a student whose spouse just asked for a divorce, whose child was in the hospital all weekend, or who is simply terrified of speaking in class when put on the spot. Or perhaps you called on a perennial slacker who was out drinking the night before.  Should it matter to you that it could be the former rather than the latter? I can hear you saying it will not matter to the judge, but the point is that we are not judges. The classroom is not the courtroom: the stakes simply are not that high. Moreover, I am trying to set a tone where students feel safe to experiment with ideas and arguments and to make the inevitable mistakes that go with that experimentation. Should I demand more? or less?  [My gut instinct is to say more.]

In addition to the examples above, I had an uncomfortable realization today concerning the standards I set for myself, or rather, my failure to realize them to the extent I would like. I try hard to never miss a deadline set by a co-author or a publisher. I also try hard to have an open door policy and to see students who drop by when they drop by if at all possible. But I realized that, although my door is open, I sometimes am not evincing the open door attitude I'm striving for because I'm feeling the pressure of conflicting obligations. Maybe I would actually be more welcoming if I restricted students to my office hours, and if the ordinary scheduled amount of hours seem too meager, I could add more.

I could go on in this vein. [Did I mention that my three sons just got their report cards or that I feel guilty this isn't a "substantive" blog post?]

Posted by Lyrissa Lidsky on November 9, 2010 at 10:21 PM in Life of Law Schools, Lyrissa Lidsky, Teaching Law | Permalink | Comments (7) | TrackBack

Wednesday, November 03, 2010

Teachers' Manuals

One sign that you are an experienced teacher is that  you don't care whether the book you adopt has a teacher's manual or not.  If you are teaching a subject for the first time, however, the teacher's manual can be a lifeline. 

I've been thinking about TMs because I am going to be writing one  for a casebook that is in its eighth edition.  The book has not only survived but thrived through seven editions without a TM, but the publishers would really, really like to have one, so we finally cracked under the pressure and agreed to deliver one.  My problem is that I'm out of touch with the needs of the first-time teacher of the subject.  I don't care to read someone else's summary of case, but that seems to be the stock in trade of many TMs.  I know that the one thing I want from a TM is an answer to any problem or extended hypothetical that the authors pose, and I sometimes appreciate the TM pointing me to outside reading in the area.  I also appreciate it if the TM gives hypotheticals to pose to students or points to videos or other materials that might be useful.  And of course, I wouldn't mind seeing sample exam questions, but TMs rarely include those.  Beyond that, what should the TM include?  You tell me. 

Posted by Lyrissa Lidsky on November 3, 2010 at 11:29 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (17) | TrackBack

Monday, October 25, 2010

A Writer's Time

I came to the study of law because it seemed like a good career for someone who loved reading, writing, and analyzing texts but was not creative enough to make it as a novelist nor independently wealthy enough to risk becoming a medievalist.  I also thought that studying law would allow me to make things happen in a way that studying the venerable Bede might not.  I question some of my reasoning now, but the decision has turned out to be an excellent one for me.  Yet I always admire those who tread the path not taken.  One of them is my friend Maud Newton, who was one of my very fist research assistants in her former life--the one she partly abandoned to pursue her dream of writing fiction.  Maud  (though I still think of her by a different name) is a well known literary blogger, and she and I share a fascination with the writing process.  She has a great post this week about her struggles to finish her novel, and it includes the following quotation from E.B. White:

[T]here is nothing harder to estimate than a writer’s time, nothing harder to keep track of. There are moments — moments of sustained creation — when his time is fairly valuable; and there are hours and hours when a writer’s time isn’t worth the paper he is not writing anything on.

I am not a novelist, but I do presume to call myself a writer, and I find it oddly encouraging that the great E.B. White experienced the same joys and frustrations with writing that I do.  I plan to track down One Man's Meat, the work from which this quotation was drawn, immediately.


Posted by Lyrissa Lidsky on October 25, 2010 at 10:57 PM in Culture, Lyrissa Lidsky, Weblogs | Permalink | Comments (6) | TrackBack

Saturday, October 23, 2010

Wikileaks, Genies, and Bottles

Julian Assange, founder of WikiLeaks, is at it again.  First he released 77, 000 secret government documents from the war in Afghanistan, and he has now released 391, 832 field reports from Iraq. 

The New York Times profile of Assange gives some indication of his motive.  He apparently believes his disclosures may curb what he sees as dangerous aggression by the U.S.   More significantly, he is a  (former, alleged) computer hacker who apparently believes in disclosure at all costs, even if the costs are human lives. 

Assange apparently feels a kinship with Daniel Ellsberg, but Assange's disclosures are far more dangerous and potentially deadly than Ellsberg's were during the Vietnam War.  The Pentagon Papers purloined by Ellsberg--the original documents, that is--were filtered through real journalists and editors at the Washington Post and the New York Times.   These "intermediaries" exercised judgment about what should be revealed and what shouldn't based on some consideration of the safety of American military personnel and whether the disclosures truly served the public interest.  Apparently no such editorial judgment is at work behind the Wikileaks disclosures.  Assange is determined to disclose, devil take the consequences, and the Internet gives him the power to release the 391, 932 documents in an instant to the entire world.

In the U.S., I fear that the Wikileaks incident may doom passage of the federal shield bill (the Free Flow of Information Act).  The shield bill, which contains a broad exception to protect national security,  gives reporters limited protection from being forced to reveal the identities of confidential sources in response to federal subpoenas.  It had passed the House and the Senate Judiciary Commitee, when it stalled over the definition of "journalists" entitled to its protection--thanks in significant  part to Wikileaks' original release of Afghan war documents.  This second release by Wikileaks probably spells an end to any desire legislators may have to limit the discretion of the Executive Branch in pursuing leakers of any stripe. 

If anything, the Wikileaks controversy ought to illustrate the important role played by the institutional or so-called "mainstream" media and ought to give Congress more confidence in adopting a narrow definition of "journalists" entitled to the protections of the shield law.  The released documents appear to contain information suggesting governmental abuses of power in the conduct of the war in Iraq.  This information is of vital public interest, and had the documents been leaked to a responsible news outlet, it would no doubt have analyzed, organized, and assembled the information to focus primarily on the items of public interest while minimizing the risks to our troops, our allies, and our national interests.  The fact that the institutional media  have no protection from federal supoenas may in fact have  helped convince the person who leaked the documents to give them to an alleged computer hacker based offshore rather than a responsible outlet such as the Wall Street Journal or the New York Times.  Even if the mainsteam media are flawed, they still have institutional checks and balances and mechanisms for enforcing institutional norms that "non-mainstream" media lack.  The important role the Fourth Estate plays in democracy deserves protection even if it means Congress must draw messy lines excluding others who are occasionally capable of playing that same role. 

Posted by Lyrissa Lidsky on October 23, 2010 at 08:14 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (10) | TrackBack

Monday, October 11, 2010

Revamping the 1L Curriculum

How do law schools justify their curricula in a world where tuition keeps rising and employment rates for grads keep falling? 

In response to this question, and at the nudging of our curriculum committee, several of my colleagues today began discussing what should be done to revamp the 1L curriculum.  It was amazing to hear how much consensus there is about what skills too many students lack after the 1L year.  They can't (or don't) read cases closely enough; they can't (or don't) read statutes closely enough; their writing skills are underdeveloped; their analytical skills are weak; they lack initiative and self-reliance. 

There was far less consensus on how to solve the problem.  Proposals included having a separate class to teach legal reasoning skills, adding skills components to traditional 1L classes, making sure 1L students have a small section experience, beefing up legal research and writing requirements, requiring 1L profs to use essay exams, banning laptops in class, and adding components to 1L classes designed to boost "emotional intelligence" or professionalism.

Inevitably, when it comes time to vote for changes, many of my colleagues will resist some or all of these  proposals.  Some will refuse to believe that the traditional methods simply aren't working adequately to teach legal reasoning, even while they complain about the supposedly "lazy" students "this generation" has produced.  Some will contend that teaching skills (however defined) is somehow beneath us profs (although they won't use these words) and that students can pick up skills on their own.  Some who make this argument will genuinely believe, as I once did, that students can teach themselves almost anything once they understand the process of legal reasoning; others will simply be reluctant to revamp a course they've taught for years.  Yet others will say it is the job of law firms to mentor young lawyers,thereby showing that they've completely missed the transformation of law firm culture that took place after they left law practice. It is becoming increasingly clear, however, that if law schools aren't proactive in training students to "hit the ground running" when they graduate, the ABA will force our hand. 

I don't know what the answers are, but I do know something must be done.  What has your school done?  Is it working?




Posted by Lyrissa Lidsky on October 11, 2010 at 09:49 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (12) | TrackBack

Tuesday, October 05, 2010

On Casebooks & the Invisible Author

I received three casebook royalty checks this week.  I'm very grateful for the checks, but let's just say I won't be quitting my day job any time soon, and calculating my hourly rate for casebook writing would be downright depressing.  As a result, I probably should be reflecting on why I write casebooks at all, but instead I've been thinking about  how to write casebooks. 

I enjoy writing casebooks tremendously.  Writing a good casebook is like solving a puzzle.  You search and search to find the right case to demonstrate a particular legal doctrine.  Ideally the case has interesting and memorable facts and a clear and lucid discussion of the law.  An occasional persuasive yet compact dissent is a bonus.  Even after you've found the right case, you must edit it within an inch of its life without destroying its heart and soul, which really challenges you to understand the case not just as a legal document but as a literary product.   A further challenge is to see if you can organize the case so that it either forms part of a logical progression of principles or benefits from being read in juxtaposition with other cases.  If you get this part right, your editing and organization will seem obvious and you will get absolutely no credit for the thought that went into it.  But that is fine, because you will know what the process entailed and you will have had fun doing it. 

I am very opinionated about the proper role of the casebook author.  My overall goal in writing casebooks is to be as invisible as possible.  Casebooks are not the place for self-indulgence.  A casebook helps students understand and critique the law as it currently is.  A casebook is not the place for a professor to remake the law as she wishes it to be.  [Neither is the classroom.]  Instead, a casebook is the place to give students the tools they will need to remake the law as they wish it to be.  I should state for the record that I realize complete invisibility is unattainable:  both editing and explanation involve choices, and these choices inevitably reflect the biases of the author.  Moreover, though I strive mightily, I'm certainly not above including a self-indulgent note here and there or slipping into passive voice or committing any one of a thousand writing sins.  But even if invisibility is impossible, striving for it still seems worthwhile. 


Posted by Lyrissa Lidsky on October 5, 2010 at 10:22 PM in Lyrissa Lidsky | Permalink | Comments (8) | TrackBack

Tuesday, September 28, 2010

Adding Insult to Injury?: Amanda Knox Charged with Slander

Amanda Knox, the American college student convicted of murder in Italy, now faces charges that she slandered the Italian police by claiming they hit her in the course of questioning her about the murder.  The charge could end up adding another six years to her 26-year sentence for murder.  Evidently her mother also faces charges for repeating her allegations.  From an American perspective, the slander charges are an unnecessary absurdity.  Did Knox's allegation really endanger the reputation or dignity of the Italian police?  The case is a reminder of why we as Americans should be grateful that New York Times v. Sullivan protects us from being hauled up on seditious libel charges every time we venture to criticize government officials.  Sullivan undoubtedly has led to a coarsening of public discourse, but it has largely spared us from government officials using libel and slander actions to silence their critics. 

Posted by Lyrissa Lidsky on September 28, 2010 at 08:12 AM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky | Permalink | Comments (3) | TrackBack

Saturday, September 25, 2010

Bits Without Borders Conference

I am at the fabulous Bits Without Borders conference at Michigan State University College of Law. I am presenting my paper entitled Public Forum 2.0. Yesterday featured a host of great papers, including one by James Grimmelman from New York Law School on the lessons about the rule of law we can learn from the failed experiment of Sealand. Be looking for it soon in a law review near you.

Posted by Lyrissa Lidsky on September 25, 2010 at 05:58 AM in Intellectual Property, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Wednesday, September 22, 2010

How the Constitution Can Make Our Military Stronger

I would like to recommend a book by my colleague Diane Mazur at the University of Florida Levin College of Law that could not be more timely.  The book is called A More Perfect Military:  How the Constitution Can Make Our Military Stronger.  Here are the links to the book, with descriptions, advance praise, and so forth.    

Posted by Lyrissa Lidsky on September 22, 2010 at 10:20 PM in Books, Constitutional thoughts, Current Affairs, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Florida DCA strikes law barring adoption by parent who is gay

Here is the decision.  Florida's Third District Court of Appeal struck down Florida Statute 63.042(3), which bars any person who is homosexual from adopting.  Significantly, the statute prohibited adoption by homosexual men and women, while allowing adoption on a case-by-case basis by people with criminal records or histories of substances abuse.  The state had tried to justify the law on the grounds that the prohibition was rationally related to the goal of placing children in households with "better role models" where they would face "less discrimination."  However, the statute specifically allowed single parent adoption, and it did not prohibit placing children with homosexual men and women as foster parents.  The court, after surveying the extensive evidentiary record from the trial court indicating that homosexual parents are in no way inferior to heterosexual ones,  concluded that there was no rational basis for the statute and that it therefore violated the equal protection provision of the Florida Constitution.  Congratulations to my colleague Joseph Jackson and my former colleague Barbara Bennett Woodhouse, who authored an amicus brief in the case together with dedicated faculty, staff, and students from UF's Center on Children and Families! 

Posted by Lyrissa Lidsky on September 22, 2010 at 09:43 PM in Constitutional thoughts, Current Affairs, Law and Politics, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Tuesday, September 14, 2010

Michael Bloomberg, Adventure Outdoors, Bob Barr, and Libel

Former Georgia Congressman Bob Barr is representing a gun dealer suing New York City Mayor Michael Bloomberg for libel.  The gun dealer, Adventure Outdoors, was named in a public nuisance suit brought by the City of New York against a number of dealers to stop "straw-person sales."   At a news conference concerning the suit, Mayor Bloomberg  called the dealers targeted in the suit a “group of bad apples who routinely ignore federal regulations” and stated that they had “New Yorkers’ blood on their hands.”  Barr sued for libel on behalf of Adventure Outdoors, and Bloomberg's lawyer Peter Canfield invoked Georgia's Anti-Slapp law.  The law requires, among other things, that a libel plaintiff file a "verification" that his claim is well-grounded or filed in good faith.  Barr refused to file the verification, and the trial judge dismissed his claim.  Barr then appealed to the Georgia Court of Appeals, where, according to a newspaper account, he continued to make the fairly ridiculous argument that  Georgia's anti-SLAPP law did not apply because the defendant's speech was defamatory.  This argument is ridiculous because the anti-SLAPP law is designed to prevent plaintiffs from using frivolous libel claims to chill free speech; if all it takes to get around the anti-SLAPP law is an allegation of libel, then it really wouldn't be of much use, now would it?   Barr also made the more plausible argument that the anti-SLAPP statute did not apply to Bloomberg because he isn't a Georgia citizen.    The story is in the Daily Business Review.

Posted by Lyrissa Lidsky on September 14, 2010 at 04:39 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (1) | TrackBack

Monday, September 13, 2010

Why Governments Use Social Media and Why They Should

Lately, I've been exploring whether public forum doctrine may impede desirable governmental uses of interactive social media.   As part of that project, I'm examining both government incentives to use social media and citizen interests implicated by government social media use.  

Governments must speak in order to govern.  Governments speak to educate and to inculcate democratic values, to shape behavior and norms.  Governments seek to persuade, manipulate, coerce, nudge, wheedle, and imprecate.  They tell citizens to say no to drugs, to vote, to return the census, to get flu shots, to pay taxes, to wear seat belts, and to volunteer.  Indeed, effective government communication is essential to effective policy implementation.  Without the acquiescence of the governed, it is almost impossible for a democratic government to perform its roles and functions, and acquiescence is secured through communications. Traditionally, government has spoken through mass media using advertisements and position pages, interviews and pamphlets, public art and press conferences.  Now, however, the government has begun to convey its message through emails, websites, Facebook pages, tweets, and text messages.  Here’s why. 

Access to citizens.  The government has a host of practical reasons for using “new media” for communications with citizens.  Willie Sutton was reported to have said that he robbed banks because “that’s where the money is,” and governments turn to social media because that’s where the citizens are.  However, sheer audience size is only part of the picture. 

Access to Desirable Audiences or Constituencies.  Audience demographics are also important.  The audience of citizens that the government reaches via social media is likely different than the audience that the government reaches via traditional mass media, and these differences may make the audience especially desirable for government communication purposes.  MySpace users, for example, skew younger than citizens who attend city commission meetings or watch the network news, making MySpace a better platform for informing college freshmen about the benefits of the meningitis vaccine.   In addition, government may wish to reach social media audiences because they are more likely to be politically engaged than their fellow citizens. It is not far-fetched to presume that the same initiative that leads social media users to seek out government information online may lead them to other types of political engagement. 

Community-Building and Political Engagement.  Government actors have not been slow to appreciate that social media is not just a tool for communication but a tool for community-building and engagement.  Social media create social relationships, and they may help mobilize citizens from different walks of life and strata of society.  Social media may even help humanize government by giving citizens the sense that their voices are being heard by those in power, thereby defusing social tensions.

Crowdsourcing and improved governance.  The sense of community that is sometimes fostered by social media may ultimately improve not only the relationships between governors and the governed, but also the processes and outcomes of governance.  Social media can serve many of the functions of town hall meetings without the expense or the geographic or time constraints.  Indeed, social media can be used not just to create communities of citizens, but even communities of “experts,” who can share their knowledge to improve the decisions made by government actors. 

Speed, Economy, and Elimination of Intermediaries.  All social media, whether interactive or not, have the advantages of allowing government speakers to quickly and cheaply introduce messages into the public information stream without having to rely on intermediaries.  Social media are ideal for communicating during emergencies because government can issue messages to citizens with rapid speed.  Moreover, social media create a direct line of communication between governor and governed.  Social media decrease government reliance on the traditional mass media to relay (and potentially distort) government messages.  In an age when citizens are highly skeptical of the mainstream media, often for good reason, eliminating their role in the communication process is tremendously beneficial to government actors, though of course it creates an avenue for disseminating propaganda.

Responsiveness.  In order to maintain legitimacy, democratic governments must appear to be responsive to the needs of citizens.  Interactive social media allow governments to gather information from citizens, to listen to their needs and interests, and to respond directly to them quickly and efficiently.  Indeed, the desire to appear responsive to the needs of citizens is a key impetus behind government use of social media.

Luckily, government social media use, even when motivated by pure self-interest, often benefits citizens.  Citizens have an interest in receiving government information quickly, cheaply, and without distortion.  They also have a strong interest in having governments that are responsive to their needs and interests.  However, it is also worth considering how government use of social media fosters the First Amendment interests of citizens.  I use the word “interests” rather than rights because the Supreme Court has never explicitly interpreted First Amendment doctrine to require governments to enable citizens’ exercise of First Amendment freedoms.  That said, the effect of public forum doctrine is to create, in the words of Cass Sunstein, “a right of speakers’ access, both to places and to people."  Public forum doctrine acts as a government subsidy for speech.  The government must hold open traditional forums such as streets and parks for the benefit of speakers who would otherwise lack the resources to reach a mass audience.   Yet, the Supreme Court has been oddly reluctant to extend this understanding to places that have not been open to the public since “ancient times.”

Social media forums, and especially government sponsored ones, have the potential to advance the First Amendment values of free speech, free association, and the petitioning of government for redress of grievances.  With regard to speech and association, social media bring citizens together across boundaries of space and time that often separate them in the offline world.  But government sponsored social media provide speakers with a particularly valuable commodity.  Just as governments use social media to reach desirable audiences, citizens can use these same social media outlets to address audiences that would otherwise be difficult or impossible to reach.  A citizen may seek out the U.S. Coast Guard’s Facebook page, for example, in order to register a complaint about its handling of British Petroleum’s oil spill in the Gulf of Mexico.  Although the same citizen would be free to set up his own Facebook page to complain about the Coast Guard’s clean-up efforts, the government sponsored Facebook page provides him access to a receptive audience that likely already knows something about the Coast Guard and cares about its performance.

Not only can the Coast Guard sponsored page provide speakers a unique and valuable platform to reach interested fellow citizens, but it can also increase the likelihood that speakers and audience can unite to engage in political action.  Again, audience members who seek information on government sponsored sites may be especially interested in the government policy discussed at that site, and thus more likely than others to engage in action to change or improve the program.  In the Coast Guard example, a citizen might use the government sponsored page to invite fellow citizens to take collective action, such as attending a rally or volunteering to assist with clean up of polluted beaches.  No other online forum is likely to reach quite as interested an audience, nor foster political association, as effectively as the government sponsored one.  Thus, it is incumbent as a matter of public policy to encourage government to open social media as forums for communications to, by, and with citizens. 

Perhaps the most compelling argument supporting government creation of social media forums is that they give meaning to the often neglected constitutional right of citizens to petition government for redress of grievances.  In his new book on the Petition Clause, Professor Ronald Krotoszynski explains that “at its core, the Petition Clause stands for the proposition that government, and those who work for it, must be accessible and responsive to the people.”  Even if governments create interactive social media sites only to create the appearance that they are responsive, citizens can still use them to demand actual responses, as the First Amendment entitles them to do.  Indeed, the use of social media may create pressure for government to be responsive to citizen demands.  This feature of social media forums makes them distinctive from streets and parks, which may sometimes be used to protest government practices and policies in ways that demand action, but do not provide a direct conduit to the government officials in charge of those practices and policies. Although the right to petition is doctrinally underdeveloped, it plays an important role not played by the rights of speech or association.  The Petition Clause guarantees not just a right to speak, but a right to speak to those empowered to take action in response.  It therefore helps guarantee governmental accountability to the electorate, which is the essence of democratic self-governance. 



Posted by Lyrissa Lidsky on September 13, 2010 at 09:19 AM in Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (2) | TrackBack

Monday, September 06, 2010

Studies of studying

The New York Times today reports on studies of effective studying.  You law profs out there might want to share this article with students.  Some of the results are surprising.  For example, studies indicate that students retain material most effectively when they study it in several different locations and when they study several different but related topics in one study session.  Less surprising is the finding that testing is a powerful tool for learning.  

Posted by Lyrissa Lidsky on September 6, 2010 at 08:42 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (0) | TrackBack

Banning the Raising of Hands in the Classroom?

Here's a report  concerning a small study of 13-year-old schoolchildren suggesting they learned significantly more when they were banned from raising their hands in class.  Instead, every child had to write the answer to the teacher's question on a whiteboard and raise it at the same time.  Interestingly, this method helped not only the shy students but the bold ones who would otherwise dominate the classroom discussion.   What applications might this study have for the law school classroom?  Does it validate a random call system?  Does it validate use of the TWEN instapoll?

Posted by Lyrissa Lidsky on September 6, 2010 at 01:02 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (1) | TrackBack

Wednesday, August 25, 2010

Policing Decorum in the Limited Public (Social Media) Forum

I have been researching the circumstances under which government sponsored social media  sites should be treated as limited public forums.  One issue I’ve been examining is whether a government actor who creates, say, a Facebook page that is set up to be a limited public forum constitutionally may police “decorum” within the forum by eliminating speech “flagged” as profanity or hateful or defamatory speech.  Here’s my answer. 

The constitutional limits on the government’s attempts to preserve orderly and civil discourse within limited public forums are not entirely clear.  For example, the Supreme Court has never addressed directly the scope of the government’s authority to police decorum in the limited public forum (although it has done so in the context of schools and public broadcasting, and arguably has addressed the issue indirectly in Southeastern Promotions v. Conrad).  The Supreme Court announced, in the celebrated case of Cohen v. California, that the proper remedy for an audience member offended by a the use of the word “fuck” on a jacket was to avert his or her eyes, the Court never addressed the constitutional standard applicable in nonpublic forum or a limited public forum whose purpose arguably could be thwarted by profane speech. Presumably, though, the government’s attempts to regulate decorum in the limited public forum should be evaluated as an attempt to preserve the forum for its intended purpose, and should therefore be judged by whether they are reasonable and viewpoint neutral.  Application of this test, however, should be responsive to the nature or context of the forum.

Lower courts that have addressed the issue in the somewhat analogous contexts of city council and planning commission meetings have struggled to balance the government’s interest in preserving civility in the limited public forum with the interests of speakers in addressing government actors in the manner of their choosing.  However, most circuit courts that have addressed the issue have given deference to government actors attempting to preserve order and decorum.  An instructive example is the Ninth Circuit Court of Appeals decision in White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990). That case dealt with the constitutionality of a city’s “rules of decorum” for city council meetings, which forbade “personal, impertinent, slanderous or profane” remarks that “disrupt[ed], disturb[ed] or otherwise impede[d] the orderly conduct of of [city council] meeting[s]”  The Ninth Circuit noted that “a City Council meeting is  . . . a governmental process with a governmental purpose,” and the court therefore gave the city council a great deal of leeway in regulating decorum, going so far as to say that the city “certainly may stop [a speaker] if his speech becomes irrelevant or repetitious.”  Indeed, the court stated that in the context of city council meetings, a speaker may be deemed disruptive simply by “speaking too long, being unduly repetitious, or by extended discussion of irrelevancies.”  The court strongly tipped the balance in favor of allowing the council to “accomplish[ ] its business in a reasonably efficient manner,” giving short shrift to the rights of speakers to address the forum in the manner of their choosing.   


The Fourth Circuit was similarly deferential to government interests in Steinburg v. Chesterfield County Planning Commission, 527 F.3d 385.  That case involved a citizen who had been stopped from speaking at a planning commission meeting because his remarks were allegedly off topic and contained (very mild) “personal attacks” against the commissioners for not paying attention.  Because the county planning commission meeting at issue was classified as a limited public forum, the Fourth Circuit evaluated the county commission’s policy against personal attacks only for reasonableness and viewpoint neutrality.  The court concluded that “a governmental entity such as the Commission is justified in limiting its meetings to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business.”   The court therefore upheld the county’s “content-neutral policy against personal attacks” against a facial challenge because it promoted the “legitimate public interest . . . of decorum and order.” The Sixth Circuit Court of Appeals sounded a less deferential note in Leonard v. Robinson, 477 F.3d 347 (2007), when it reversed summary judgment in favor of a police officer who arrested a citizen “solely for uttering ‘God damn’” while speaking at a township board meeting.  However, Robinson differs from the cases discussed above because the police officer arrested the speaker even though the public official conducting the meeting had not ruled that he was out of order or in any way disrupting government proceedings.  Nonetheless, the Sixth Circuit clearly had a different view of the potential disruptiveness of profanity than its sister circuits.  Citing Cohen v. California, the court asserted that prohibiting the speaker from “coupling an expletive to his politicial speech is clearly unconstitutional.”  

 This question about how much deference to give government actors in regulating profane or “abusive” speech in online forums is particularly pressing research suggests that computer mediated communications are more likely than those in the “real world” to become profane or abusive, particularly when speakers believe they are anonymous.  Thus, it might be argued that government has more pressing interests in regulating profane and abusive speech in the online contexts than in others simply because the prevalence of such speech may hinder the use of a government sponsored social media site as a forum for public discourse.  Moreover, the government can help to ensure that its regulation of such speech is not a cloak for censorship by setting up filtering programs that operate “neutrally” once put into place.  And some social media sites, such as Facebook, conduct their own monitoring and filtering of profane and abusive speech, thereby largely eliminating in government role in censoring to eliminate such commentary.  Despite these persuasive arguments, however, public discussion that takes place on a social media site is fundamentally different from public discussion in a city council meeting.  The user of the online forum ordinarily must take some kind of affirmative step to seek out comments by fellow users; even once a user decides to read the comments, she can easily scroll past the ones that appear to be offensive.  Thus, the “captive audience” problem is present to a lesser degree than in a physical forum like a city council meeting.  In addition, a profane or abusive speaker in an online forum poses little danger of disrupting a government process or impairing its efficiency.  Thus, there is arguably little justification for deferring to government attempts to protect the sensibilities of citizens who come to its social media site. 



Posted by Lyrissa Lidsky on August 25, 2010 at 02:28 PM in First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (3) | TrackBack

Monday, August 23, 2010

(Business) License to Blog

Philadelphia is now charging bloggers $300 for a business license.  One of the bloggers being charged the licensing fee made a grand total of $11 off of his blog.  Forcing bloggers to pay the fee may be penny wise from a revenue raising perspective, but it is pound foolish with regard to fostering the richness of public discourse. 

Posted by Lyrissa Lidsky on August 23, 2010 at 02:48 PM in Blogging, Lyrissa Lidsky | Permalink | Comments (14) | TrackBack

Friday, August 20, 2010

First Day of Torts

My first day of Torts is on Monday, and despite the fact that I'm teaching it for my fifteenth or sixteenth time, I'm still anxious about setting the right tone and pitching the material at the right level for the new 1Ls.  I try to cover a variety of topics at some point in the first week, including what a tort is, what tort law is supposed to be for, alternatives to the tort system, what common law is, the various levels of courts in the American system, stare decisis and the hierarchy of authority, the limits of studying appellate decisions, what it means when you say "jurisdictions vary" and why there is no unified law of torts for the entire United States, how to tell if an authority is binding or merely persuasive, the "broad brush" differences between torts and crimes and between torts and contracts, and little about the historical development of tort law.  I also discuss, of course, trial court procedure, the importance of identifying the procedural posture of the case, what "elements" are and how to identify them, and what Restatements are.  That's a lot to try to do in the first few days, isn't it?  I don't assume that the students will master all of these topics.  Instead, I try give them the basic knowledge they need to read a case and to introduce themes and concepts that I'll refer to throughout the course.  One of the main ideas I try to introduce is that there are types of arguments that are distinctively recognizable as "legal," and throughout the course, I try to teach students to recognize and reproduce those arguments.  The article that most influenced the way I teach Torts was James Boyle's Anatomy of a Torts Class.  In the past I tried assigning it at the beginning of the semester, but I've found the students really aren't ready for it then.  Incidentally, I love the eagerness of 1Ls, even though 1Ls are much more "high-maintenance" than 2Ls and 3Ls.  My own 1L experience was one of the most intellectually invigorating of my life, and I always hope I can "pay it forward" by making the 1L experience equally invigorating for my students.   

Posted by Lyrissa Lidsky on August 20, 2010 at 10:50 PM in Lyrissa Lidsky, Teaching Law, Torts | Permalink | Comments (6) | TrackBack

Judicial Independence

Here's a story about a law professor/federal judge nominee whose net worth is $20 million.

Posted by Lyrissa Lidsky on August 20, 2010 at 11:29 AM in Lyrissa Lidsky | Permalink | Comments (3) | TrackBack

Wednesday, August 11, 2010

Category Confusion and Public Forums: CLS v. Martinez

How many constitutional categories of public forums are there and what are their names?  This should be an easy question to answer, right?

In the recent case of Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010), the Supreme Court majority stated (and the dissent did not dispute) that there are three categories:  traditional public forums, designated public forums, and limited public forums. Id. at 2984 n. 11.  Compare this to the Supreme Court decision of Arkansas Educational Television Comm'n v. Forbes, 523 U.S. 666 (1998), in which the Supreme Courts divides forums into the categories of traditional public forums, designated public forums (whether open to "all or part of the public"), and nonpublic forums.  

Evidently, the Court now conceives of the term "designated public forum" to refer only to a forum that is designated as open to the public as a whole rather than to merely a part of it.  Does the distinction between the limited public forum and the "nonpublic forum" therefore collapse?  Or did the Court just omit to mention the nonpublic forum as a category because Martinez so clearly involved a limited public forum?  Even before this decision, the constitutional standards applicable to the limited public forum and the nonpublic forum weren't all that different, if, indeed, they were different at all.  It was clear, even prior to Martinez, that in both the limited public forum and the nonpublic forum, the State was required to maintain viewpoint neutrality and application of state-imposed content parameters was subject only to review for whether it was reasonable in light of the purposes of the forum.  But is there really no difference between the two now?

Does this category confusion drive anyone but me crazy?

Posted by Lyrissa Lidsky on August 11, 2010 at 02:27 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (9) | TrackBack

Tuesday, August 10, 2010

Want to Improve Your Teaching?: Watch This

This video of a lecture by Dr. Robert Duke explains many precepts of good teaching that too many law professors are unfamiliar with or ignore.  ‎Here's one of my favorite quotes from the video:  "If you're teaching something that has to do with change, it is probably interesting. If you're teaching something static, it is probably not."  Another is:  "Testing teaches [whether it means to or not.]." 

On a related note, I would argue that the relevant research suggests that it is pedagogically unsound to administer one exam per semester to evaluate students, and yet almost all law professors continue to do it anyway, in part because we can't withstand the pressure to do otherwise.  I am not claiming any moral superiority in this regard.  Though I've begun administering a series of quizzes in Torts, I still only administer one final exam in my upper-level courses.  But I have a growing sense that it is very wrong, and I expect to change it soon.

Posted by Lyrissa Lidsky on August 10, 2010 at 09:27 PM in Lyrissa Lidsky, Things You Oughta Know if You Teach X | Permalink | Comments (5) | TrackBack