September 1, 2010
Why Don’t You Need IRB Approval to Talk About People in Cases?
posted by Dave Hoffman
Legal archaeology is a term sometimes used to refer to scholarship that brings a rich context to famous cases. If you were a legal researcher seeking to enrich a modern classic – e.g., Pepsico [contracts], Lawrence [con law], Liebeck [torts], Twombly [civ pro] – you might proceed by interviewing the parties and their attorneys, examining prior and related cases, and boning up on the briefs and exhibits. It seems pretty clear to me that before undertaking such research, a prudent professor would check in with their IRB. The interviewing of the parties and their attorneys in particular doesn’t appear to be clearly covered by any exemption, and I imagine that at least expedited review would be indicated.
But how about simply writing about living parties – or judges – in modern cases? It would seem inconceivable to go to the IRB before writing about, say, Yaser Hamdi. Well, you never know how your local IRB will deal with novelty. So let’s go back to the basics. Is this research under Section 46.102? Arguably: it is a “systemic investigation . . . designed to contribute to generalizable knowledge.” Is it research regarding human subjects? Well, under 46.102(f), human subjects are people you collect data from through actual contact or those who you collect data that is otherwise private. Private information “includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record).” Are their facts about behavior disclosed in judicial opinions which fit this definition? I can think of many: disclosure of facts from police reports, medical records, taxes, etc. Indeed, most opinions disclose facts about individuals that they’d never, ever, want told to the public, and were forced to disclose only through contentious discovery. Quite often, the discovery contained stipulations of confidentiality that bind the parties, but not the court.
Nevertheless, it’s clear that writing about such personal facts in released opinions is in fact exempt from IRB review, since a judicial opinion is, under 46.101(b)(4), a public record. So you might think that this entire exercise is academic. And for some IRBs, it would be. But most IRBs would take the position – if asked – that researchers must submit an application to them, so that the board can evaluate the claim for exemption. This is a slam dunk case for exemption, but that doesn’t mean that the professor gets to decide for herself that no application is necessary. Of course, I’ve never heard of a law professor submitting to an IRB before writing an article about a recent case of interest, even when discussing the most personal facts relating to the parties or the judge. In fact, some articles about particular judges have created political scandals of some note. Unless I’m mistaken about any of the previous analysis, I think that means that most law professors, some of the time, are not in technical compliance with a set of (very silly and possibly unconstitutional as applied) regulations. Ironically, it is probably constitutional law professors, who write about recent cases involving individual parties most often, who are the prime violators. If your law school has not reached a general understanding with your local IRB about how to proceed, it should.
Thoughts?
September 1, 2010 at 3:04 pm
Posted in: Administrative Law, Bioethics, Constitutional Law, Empirical Analysis of Law, Law School (Scholarship)
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Iowa Law Review, Volume 95, Issue 5 (July 2010)
posted by Iowa Law Review
Articles
Burying the “Continuing Body” Theory of the Senate
Aaron-Andrew P. Bruhl
Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument
I. Glenn Cohen
Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations?
Michael H. LeRoy
Evidence Law as a System of Incentives
John Leubsdorf
Notes
A New Wave of Paternalistic Tobacco Regulation
Robert J. Baehr
Fair Use Through the Lenz of § 512(c) of the DMCA: A Preemptive Defense to a Premature Remedy?
Joseph M. Miller
Judicial Federalism, Equal Protection, and the Legacy of Racing Association of Central Iowa
Brett F. Roberts
September 1, 2010 at 2:34 pm
Posted in: Law Rev (Iowa), Law Rev Contents, Law Rev Forum, Law School
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Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter?
posted by Glenn Cohen
I’ve just posted a new draft on SSRN of a paper I co-authored with Daniel Chen (Duke Law School), Trading-Off Reproductive Technology and Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates and Should it Matter?, forthcoming in the Minnesota Law Review. The paper is the first to examine a frequent claim in both the adoption and reproductive technology literatures that increased access to reproductive technologies will decrease domestic and international child adoptions, and that this counts as a good reason to oppose expanding reproductive technology access. Using both econometric and normative methods, we find reason to be skeptical about both parts of the claim. We still have a little time to make changes before it goes to print, so feedback is very much welcome.
Here is the full abstract:
For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and have argued against enactment of state mandates for that reason.
In this paper, which was selected for presentation at the 2010 Stanford-Yale Junior Faculty Forum, we push against that conclusion on two fronts.
First, we interrogate the normative premises of the argument and expose its contestable implicit assumptions about how the state should balance the interests of existing children waiting for adoption and those seeking access to reproductive technology in order to have genetically related children.
Second, we investigate the unexamined empirical question behind the conclusion: does state subsidization of reproductive technologies through insurance mandates actually reduce adoption; that is, is there a trade-off between helping individuals conceive and helping children waiting to be adopted? We call the claim that there is such an effect the “substitution theory.” Using the differential timing of introduction of state-level insurance mandates relating to IVF in some states and differences in the forms these mandates take, we employ several different econometric techniques (differences-in-differences, ordinary least squares, two-stage least squares) to examine the effect of these mandates on IVF utilization and adoption. Contrary to the assumption of the substitution theory, we find no strong evidence that state support of IVF through these mandates crowds out either domestic or international adoption.
September 1, 2010 at 9:42 am
Posted in: Uncategorized
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About-Face: The Republican Wave
posted by Gerard Magliocca
This is a long post that discusses some substantive issues and offers some thoughts about academic writing. So I’ll put much, though not all, of this below the fold.
So I’ve been drafting an article on “The Obama Generation and the Supreme Court.” (I posted the Abstract here in July). The premise of that paper was that the 2008 election was an electoral realignment, and I was then going to assess the likelihood that the Court would strike down the individual health insurance mandate. I knew that the GOP would win seats this fall, but I figured that the victory would be within historical norms for a first midterm.
Er . . . now I’m thinking that I was wrong. The Republican wave is looking big–really big. Of course, things could change in the next two months. One thing, though, is clear. If the Democrats lose both houses of Congress after going into the election with such large majorities, then calling 2008 a realignment would be absurd. (You might say that this is the academic version of “You’re gonna need a bigger boat.”).
Suppose November is a train wreck for Democrats. That opens up another possibility that I’ve posted about. Perhaps the President is the second coming of William Jennings Bryan. In other words, his chief achievement will be the backlash that he generates. Granted, that thought is fresh in my mind because I have a book coming out about that period, but you could make the case on other grounds. That too, though, runs into a problem. It assumes that the GOP will win in 2012. If not, then that analogy doesn’t work either.
My conclusion: Put this Article on ice for now.
September 1, 2010 at 8:47 am
Posted in: Law School (Scholarship)
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College Football, Inc.
posted by Michael Kang
With the start of the college football season this weekend, a columnist for CNNSI.com has called for college football players to be paid by the universities they attend. He argues that “[t]hese colleges are acting like big businesses. Well, big businesses pay their talent.” Certainly college athletic departments pay their administrators and coaches very well, with more than two dozen college football head coaches making more than $2 million last year. Even some top assistant coaches make nearly half a million a year. So, if the administrators and coaches get rich off college football, why not pay the players as well? It’s an intuitive argument, one that you hear a lot if you follow college athletics. But without defending the eye-popping salaries prevailing these days in college sports, I think the case for paying college football players usually rests on a false premise.
The fallacy often underlying the argument is an assumption that universities make a great deal of money off athletics. That’s not necessarily true at all. The NCAA reported last week that the athletic departments of only 14 out of 120 schools that play in the Football Bowl Subdivision (the highest level of college football—once known as Division I) actually made money off college athletics during fiscal year 2009. What’s more, the profits of the athletic departments at even those 14 schools are not that likely to flow out of the athletic department and back in the university budget. Sure, there are exceptions, and the University of Georgia recently announced that the UGA athletic department would donate $2 million to the university last year, but it’s just as or more likely in the run of cases that the university subsidizes the athletic department in a significant way through shared or subsidized expenses such as facilities and physical plant, academic tutoring, admissions concessions, and general maintenance. In short, only a handful of universities actually make a profit from college athletics from year to year, and only a relatively small amount of money finds its way back to the larger university.
September 1, 2010 at 5:46 am
Posted in: Current Events
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Bad Words: Arbitratable and Arbitrability
posted by Lawrence Cunningham
Terrible vocabulary words are among the negative effects of the arbitration industry’s prosperity that began in the 1960s. Learned people, on courts, in law offices, and among those vested with power to resolve important disputes, say awful things, like “is this dispute arbirtatable?” and “the issue of arbitrability is for the arbitrator to decide.”
Leading guilty parties include authors of Supreme Court opinions from a 6-3 majority of current Justices: Breyer, Ginsburg, Kennedy, Scalia, Sotomayor, Thomas–though not Alito, who has had a chance (in 2010’s Stolt-Nielson opinion), or Kagan or Roberts, who haven’t.
Distinguished predecessors inaugurated this terrible usage in 1960, when Justices Brennan and Whittaker first used the words in SCOTUS opinions in respective concurring and dissenting opinions in that year’s United Steelworkers v. American. Contemporaries were in on it too, with Justice White using such words in 1962’s DrakeBakeries, and Justice Harlan in 1964’s Wiley & Sons v. Livingston.
Some Justices seem to recognize how awful the words are by enclosing them in quotation marks, distancing themselves from the bad idiom. Thus did Justice Scalia insert the word in 2010’s Rent-A-Center v. Jackson–though he used it without parentheses in an earlier opinion.
Courts ought to follow Justice Alito’s example from his opinion in Stolt-Nielson. You can ask whether a dispute is covered by an arbitration clause and whether the scope of a clause addresses a dispute to an arbitrator. You don’t need awful words like arbitratable and arbitrability. They sound affected, professionally parochial, and stupid.
September 1, 2010 at 12:34 am
Posted in: Humor, Supreme Court, Uncategorized, Weird
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August 31, 2010
Introducing Guest Blogger Alicia Kelly
posted by Solangel Maldonado
I am delighted to welcome Alicia Kelly who will be blogging with us this month. Alicia is a tenured Associate Professor at Widener University School of Law in Delaware where she teaches Family Law, Property Law, Wills and Trusts and a seminar on Money, Intimacy & Law. Her scholarship focuses on the intersections of economic behavior, intimate relationships and gender. Her writing explores theoretical and policy foundations for wealth allocation during marriage and at divorce, with particular attention to the impact of interdependent sharing behavior on wealth generated by human capital. Alicia is currently working on how these issues play out for cohabiting couples, as well as how they relate to intimate partner contracts. She is also co-authoring (with Nancy Knauer) a Property Law text for the Practice and Context Series slated for publication in 2013 (by Carolina Acdemic Press).
Alicia is currently serving as Chair of the Association of American Law Schools Section on Family & Juvenile Law, and was Program Chair for the section panel, Money, Intimacy, Law & Inequality at the 2010 Annual Meeting. She is also a member of the Executive Committee for the Section on Women and Legal Education.
This past spring 2010, Alicia was a Visiting Professor of Law at Temple University. Before joining Widener, she was on the faculty at Western State University College of Law in California. She holds an LL.M. in Legal Education from Temple University School of Law, where she was an Abraham L. Freedman Fellow and Lecturer of Law, and also earned her B.A. (magna cum laude) and her J.D.(cum laude) from Temple University. Before her law teaching career, Alicia was in private practice concentrating on complex domestic relations and general civil litigation. She is also a trained mediator.
Alicia’s publications include:
Money Matters in Marriage: Unmasking Interdependence in Ongoing Spousal Economic Relations, 47 Louisville L. Rev. 113 (2008).
Rehabilitating Partnership Marriage As A Theory of Wealth Distribution at Divorce: In Recognition of A Shared Life, 19 Wis. Women’s L.J. 141 (2004)
The Marital Partnership Pretense and Career Assets: The Ascendancy of Self Over the Marital Community, 81 Boston Univ. L. Rev. 59 (2001).
August 31, 2010 at 8:41 pm
Posted in: Administrative Announcements, Uncategorized
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Book Review: The National Security Presidency – A Primer with Provocation (Reviewing Denvir’s Freeing Speech: The Constitutional War Over National Security)
posted by David Skover
Freeing Speech: The Constitutional War Over National Security, by John Denvir. New York University Press, 2010, Pp. 189 pp., $45 (cloth).
If the volume of political dissent alone were the measure of a healthy democracy, then America has been thriving since 9/11. The roaring avalanche of critical perspectives on the “war on terrorism”— propelled by thousands of books, law review and political journal essays, and newspaper and magazine articles – might suggest that the state of our political discourse and of the constitutional order that it supports is fundamentally sound. Ironically, of course, this outpouring aims largely to prove the opposite: that unfounded claims of inherent executive authority to preserve national security imperil our free-speech system and tip the delicate balance of our tri-partite federal governmental powers.
To this resounding chorus of critique, John Denvir, the Research Professor of Constitutional Policy at the University of San Francisco School of Law, now adds his voice. Freeing Speech introduces Denvir’s concept of a “National Security Presidency” (NSP), explores several interrelated factors that have given rise to the phenomenon, and suggests political and judicial reforms as counter-forces to the excesses of the NSP. In all of this, Denvir hopes to contribute to a revitalization of democratic debate, a reanimation of political activism, a reaffirmation of constitutional safeguards – and, ultimately, to the reactivation of legislative and judicial checks on presidential overreaching in the name of national security.
Freeing Speech organizes its arguments by way of a triadic structure. After an introduction that discusses competing notions of the term “constitution,” the first three chapters of the book address the “problem” – that is, the complex of policies, practices, and pressures that have enabled Executive claims of extraordinary powers in the realm of national security. The final three chapters of the book then present the “solution” – that is, the reconfiguration of legislative and judicial responsibilities to secure the limitation of presidential power and the expansion of democratic discourse. As Denvir succinctly puts it: “The primary problem is the president’s ability to dominate debate on national security; the solution is a First Amendment that makes sure that opposition voices are heard.”
The “Problem”
The most potent vision of the NSP, as Denvir outlines it in Chapter 1, holds that the Executive has an inherent and largely unchecked constitutional duty to protect American lives and interests. Whether or not Congress sanctions his conduct either ex ante or ex post facto, the president may discharge his constitutional duty by acting on his own authority, given that time may be of the essence or secret information may not be disclosed. Moreover, neither legislative mandates nor individual constitutional rights should stand in his way. This NSP vision evolved through both Republican and Democratic administrations, beginning with Abraham Lincoln’s exercise of “emergency war powers” in the wake of the firing on Fort Sumter and continuing through the decades until its fullest blossoming in George W. Bush’s initiation of the current “war on terrorism.” Assured by the Justice Department’s Office of Legal Counsel that Congress cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of force to be used in response, or the method, timing, and nature of the response,” Bush claimed powers to singlehandedly terminate treaty obligations, to employ “aggressive” interrogation techniques on suspected terrorists, and to issue “signing statements” authorizing underenforcement of legislative provisions that infringed on his constitutional authority, among other actions.
August 31, 2010 at 8:00 pm
Posted in: Book Reviews, Constitutional Law, First Amendment, Privacy, Privacy (National Security)
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What are Today’s Hottest Contract Law Topics?
posted by Lawrence Cunningham
Contract law’s powerful hoary tools adapt admirably across centuries and settings to resolve innumerable disputes concerning rights and duties arising from promissory exchange. Endlessly elastic, contract law rises to meet challenges from what seem like new problems using time-tested principles of consideration, bargain, assent, and compensation for breach.
Yet contract law is repeatedly put to new tests each generation. In reviewing its current challenges, I’ve identified the following as the hottest topics. I’m wondering if anyone has additional suggestions for such a list.
1. treating clauses in many standard form contracts for employees and consumers that purport to remit all resulting disputes to binding arbitration, forfeiting the vaunted American value of getting one’s day in court (e.g., Jackson v. Rent-A-Center; Concepcion v. AT&T Mobile; Thomas Stipanowich, Illinois Law Review);
2. evaluating whether corporate policies, especially concerning privacy and often on the internet, are enforceable as contracts (e.g, Staffold v. Cleveland Plain-Dealer; Dyer v. Northwest Airlines Corp.; Woodrow Hartzog, Temple Law Review; Allyson Haynes, Penn State Law Review);
3. resolving tensions that arise when people promise confidentiality in the face of First Amendment impulses crying out for the right of free speech (e.g., Tiger Woods and Elin Nordegren; Perricone v. Perricone; Dan Solove & Neil Richards, Columbia Law Review)
4. assessing whether stipulated remedies in consumer contracts, like early termination fees in cell phone service provider agreements, are valid liquidated damages clauses or unenforceable penalty terms (e.g., Ayyad v. Sprint Spectrum; Larson v. Sprint Nextel Corp.; Oren Bar-Gill & Rebecca Stone, Harvard Journal of Law & Technology);
5. determining whether contracts involving reproductive technologies are enforceable (e.g., In re Baby M; A.Z. v. B.Z; Michelle Goodwin, Baby Markets, Cambridge U. Press).
What should be added to this list? Removed?
August 31, 2010 at 3:08 pm
Posted in: Contract Law & Beyond
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What Will Be the Defining Idea of the Coming Decade?
posted by Daniel Solove
For the 10th-anniversary issue of The Chronicle of Higher Education’s The Chronicle Review, the editors asked several scholars for answers to the question: “What will be the defining idea of the coming decade, and why?”
Here’s the list of the people they asked: Jaron Lanier, Daniel J. Solove, Peter Singer, Elaine Howard Ecklund, Gwenda Kaczor, Jonathan Haidt, Parker J. Palmer, Camille Paglia, Yi-Fu Tuan, Michael Glenwood Gibbs, Daniel J. Cohen, James Elkins, Mary Beard, Linda K. Kerber, Geoffrey Moss, Henry Petroski, Alondra Nelson, Brian Knutson, Saleem H. Ali, Steve Brodner, Stephon H.S. Alexander, Steven Landsburg, and Pat Shipman.
You can find all the answers here.
My answer is a short essay called Dizzied by Data. It begins:
In his short story “The Library of Babel,” Jorge Luis Borges imagined an infinitely large library containing all books. Although the library was wondrous, people had no way of finding the right book. Much like Borges’s library, the information age has presented us with a dizzying amount of data. The past decade witnessed the rise of the interactive Internet—Web 2.0—where people not only consume information but also add to it. Millions of people started blogging; social-networking sites like Facebook amassed half a billion users; and sites like Wikipedia enticed people to collaborate and share their expertise.
To cope with all this data, we created new ways to find it and analyze it. Search engines like Google revolutionized our ability to locate information, and data-mining technologies were developed to detect patterns and make judgments about people’s interests and behavior.
Over the next decade, the ability to search for information and to analyze it will mature dramatically. . . .
For the rest, click here.
August 31, 2010 at 12:59 pm
Posted in: Articles and Books, Privacy, Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement), Social Network Websites
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Paul Caron’s Fellowships for Aspiring Law Professors: 2010-2011 Edition
posted by Daniel Solove
Paul Caron has posted an update to his useful guide to fellowships and visiting associate professorships for aspiring law professors.
August 31, 2010 at 10:47 am
Posted in: Law School, Law School (Hiring & Laterals)
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August 30, 2010
What to do when seeing famous Social Security Numbers
posted by Lawrence Cunningham
The issue I raise in this post might have been sent in decades past to someone like Ann Landers, but today seems better posed as a blog item. The social security number of a famous living artist appears on publicly accessible litigation documents I examined last week in my current research. On seeing it, I immediately e-mailed the person’s lawyer, equally prominent, reporting this. Within eight minutes, the lawyer replied, with an appreciative note. Yet, one week later, the exhibit with social security number remains on line and publicly accessible. Should I do anything else? Is it likely that an exploiter of SSNs will find their way into the deep space of litigation documents that a researcher of the arcane like me will pursue?
August 30, 2010 at 11:24 pm
Posted in: Uncategorized
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Anonymous Employee Dirt, Soon Available on You?
posted by Danielle Citron
On Sunday, I posted about laws that prohibit employers from consulting certain information about job applicants, from credit reports to Facebook pages and Google search results. These laws seek to forestall unwarranted assumptions and bias. They proceed on the notion that credit history and Facebook postings have little to tell us about trustworthiness and smarts.
Much like credit ratings and Facebook posts, anonymous online reviews of people may do little more than misinform employers and ruin reputations. For instance, the site GetUnvarnished.com explains that it provides “inside scoop” on business professionals, including “candid assessments of coworkers, potential hires, business partners, and more.” On GetUnvarnished.com, people can comment on others’ reputations anonymously. Although the site uses Facebook to verify its users, it does not reveal their identities to readers. Unlike Facebook or LinkedIn, GetUnvarnished.com isn’t interested in a real-name culture. It seems highly unlikely that we can rely on people to rate others’ professional skills in a fair and balanced way. People aren’t restaurants, hotels, or books in whom we have, for the most part, little personal stake. Give a competitor a bad review and you may find yourself rich with work. As Evelyn Rusli of TechCrunch notes, GetUnvarnished may become a “nicely indexed digital burn book.” Germany should include sites like GetUnvarnished on its employer-ban list too.
August 30, 2010 at 9:54 pm
Posted in: Anonymity, Employment Law, Privacy
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JSTOR and Interdisciplinary Research
posted by Michael Kang
The degree of interdisciplinarity in legal scholarship these days is staggering. Not long ago, it was common for professors in social science disciplines to find themselves surprised by the insularity of legal scholarship on a subject that seemed out of touch with state-of-the-art research in specialized disciplines on the same subject. Today, even law students draw heavily from social science in writing their journal comments, and it is routine for work by JD-only academics to be filled with citations to social science research and engage empirical work from multiple disciplines.
Why the dramatic change? Of course, the answer is multi-faceted, and a very important factor is the changing composition of law faculties. The number of faculty with Ph.D. backgrounds has increased a great deal, bringing with them social science-oriented research and expertises that have changed the way everyone conducts legal scholarship. But there is a much simpler factor that is easy to overlook, but I’d argue is equally important—searchable Internet databases like JSTOR.
August 30, 2010 at 4:37 pm
Posted in: Uncategorized
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Unfaithful Interpretation
posted by Gerard Magliocca
Normally I run away screaming when somebody starts discussing interpretive theory. That’s partly because I just don’t find the subject that interesting, but another reason is that I’ve always seen an interpretative approach as nothing more than a presumption that is always riddled with so many exceptions that it’s hard to figure out what the presumption is.
There is a thought, though, that occurs to me, with apologies if it’s already out there. The premise behind most arguments about interpretation is that the goal is to be faithful to the source. Now, of course, reasonable people disagree about how to do that. Maybe it’s textualism, maybe it’s originalism, maybe it’s living constitutionalism, etc.
There are instances, however, in which that is not an accurate description of interpretation. A better characterization is that interpretation is about justifying a result that everybody wants even though it not in the source. In other words, some exercises of interpretation are not about being faithful at all. They are about being unfaithful. I wonder, though I haven’t thought this through, how that changes one’s view of the best interpretive theory.
By the way, if you’re looking for an example of “unfaithfulness,” consider Bolling v. Sharpe, which is really hard to square with the legal materials available in 1954, even though everybody thinks that result was right and necessary.
August 30, 2010 at 10:49 am
Posted in: Jurisprudence
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Fourth Amendment Pragmatism
posted by Daniel Solove
William James
I just posted my new forthcoming essay on SSRN called Fourth Amendment Pragmatism, 51 Boston College Law Review __ (forthcoming 2010). Here’s the abstract:
In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question – Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question – How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.
Here’s a brief excerpt from the introduction: Read the rest of this post »
August 30, 2010 at 10:14 am
Posted in: Criminal Procedure, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security)
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BRIGHT IDEAS: Collins on Justice Holmes and Free Speech
posted by Daniel Solove
In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr. Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.
Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books. Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout. Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment. There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.
I recently had a chance to talk with Ron about the book.
SOLOVE: What inspired you to write this book?
COLLINS: Long story. It began when I was in law school and read Holmes’s 1919 free speech opinions. And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time. This was in the 1970s when I was an impressionable law student. Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book. That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes. True, he challenged my mind, and I like that sort of thing even when I disagree with someone.
SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?
COLLINS: There are so many things; Holmes was such a complex man. Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions. So, not much surprise there. I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.
SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?
COLLINS: Hard call. But here they are, in no special order:
August 30, 2010 at 10:07 am
Posted in: Book Reviews, Bright Ideas, Constitutional Law, First Amendment, History of Law, Interviews, Jurisprudence, Supreme Court
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Rape, Consent, Deception, and the Blogosphere
posted by Glenn Cohen
[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way. Instead please give it the most charitable of readings]
I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).
On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape outside those contexts.
One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:
1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)
2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying. A real case along these lines in Canada had facts like these.
3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex. In fact, Dil is actually a man (inspired by this film).
4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.
August 30, 2010 at 9:44 am
Posted in: Blogging, Criminal Law, Feminism and Gender
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August 29, 2010
Banning Employers from Using Facebook as a Recruitment Tool
posted by Danielle Citron
Online reputations matter for job seekers. According to a 2009 Microsoft study, nearly 80 percent of employers consulted online information in making interviewing and hiring decisions. For over seventy percent of those surveyed, this has led to the rejection of job applicants. Mindful of the power of search, Google CEO Eric Schmidt has predicted that young people may one day be entitled to change their names on reaching adulthood to escape embarrassing information about them stored on their friends’ social media sites.
Rather than condoning name changes, German lawmakers are considering restricting the kind of online information that employers can consult. Proposed legislation would ban employers from looking at a candidate’s Facebook page yet permit them to consult sites that facilitate self-promotion such as LinkedIn. Employers could still use Google to research potential hires unless the information is “too old” or the candidate had no control over its creation. Finland has banned employers from using search engines to investigate job candidates. States like Illinois and Oregon have sought to protect future employees in another way, i.e., by banning many employers from checking job applicants’ credit.
Should law prevent employers from obtaining and using certain information about individuals? These sort of laws might prevent employers from relying on misleading or incomplete data. Research suggests that a person’s credit history has little to no connection with trustworthiness on the job. Information posted online can be taken out of context, providing a distorted view of someone who might in fact be an optimal candidate. Using law in this way might, however, permit people to hide truthful (though damaging) information, exposing employers and their stakeholders to a variety of risks. In an insightful post, guest blogger Jeff Jonas called for greater tolerance of our eccentricities for our age of over-sharing. The key question is whether employers will adopt that approach over time.
August 29, 2010 at 2:54 pm
Posted in: Uncategorized
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August 28, 2010
Good News for Health Care Reform Implementation
posted by Frank Pasquale
HCR implementation is steaming ahead. Jonathan Cohn lays out some of the key issues in a recent article in The American Prospect. A restrictive definition of “grandfathered plans” (which are not subject to the Affordable Care Act (ACA)) was an early victory for consumer advocates. Coverage appeal rules will soon be hotly contested during the rulemaking process:
Even if insurers are required to take all comers at relatively nondiscriminatory prices — “relatively” since age can be a rough proxy for medical condition — they’ll still have financial incentives to restrict care. This isn’t entirely a bad thing: Given the evidence of rampant overtreatment in American medicine, insurers should exercise some check on the use of technology, drugs, and other resources, for the sake of the patients as well as the insurers’ bottom line. But because insurers sometimes deny even necessary care, just to increase profit margins, the law seeks to limit the insurers’ authority — most obviously, by opening up treatment denials to outside appeal.
The idea sounds simple enough: Allow patients convinced they’ve been wrongly denied care to make their case to independent experts with authority to overrule the insurer. But who are the experts? How quickly must they rule? And what’s to stop insurers from ignoring the recommendations? The Obama administration has to write regulations answering all of those questions. A viable, working model exists: The National Association of State Insurance Commissioners has a framework, similar to what’s already in place in several states. HHS will consult those guidelines in devising a new scheme. The model is not perfect, but with sufficiently strong regulations it could give consumers significant new leverage.
Cohn also notes some important appointments at HHS. Having examined her work in the past, I was encouraged by the appointment of Karen Pollitz to “set up an Internet portal to provide basic information about different insurance policies.”
Nevertheless, Tim Jost warns that there are many possible obstacles ahead:
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August 28, 2010 at 7:33 pm
Posted in: Health Law, Uncategorized
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