in propria persona (Home Feed) https://inpropriapersona.com/ Recent content from in propria persona: Histories of law & technology by Kristopher A. Nelson, JD, MA (ABD) Hugo -- gohugo.io en-us &copy; 2005&ndash;2018 by <a href='https://krisnelson.org'>Kristopher A. Nelson</a> Sun, 01 Sep 2019 00:00:00 +0000 Research note: Progressives and real liberty https://inpropriapersona.com/notes/2019/09/progressives-and-real-liberty/ Sun, 01 Sep 2019 00:00:00 +0000 88c4a1fca68d3a3f1906a329d5cdffac <p>In response to the valorization of economic liberty, Progressives articulated an alternative vision of &ldquo;real liberty&rdquo; for the modern, industrial world; real liberty was something more than either the &ldquo;freedom to contract&rdquo; or Thomas Cooley&rsquo;s proto-privacy right, expressed in his 1888 treatise on torts, &ldquo;to be let alone.&rdquo;<sup class="footnote-ref" id="fnref:1"><a href="#fn:1">1</a></sup></p> <p>For Progressives, being &ldquo;let alone&rdquo; to act free of government interference perhaps made sense in an older, agrarian Jeffersonian or Jacksonian United States, but not at a time when factories, railroads, and cities increasingly dominated, bringing risks beyond the control of individual &ldquo;free men.&rdquo;<sup class="footnote-ref" id="fnref:2"><a href="#fn:2">2</a></sup></p> <p>As the generally Progressive Outlook magazine put it in 1904,</p> <blockquote> <p>Real liberty for the laborer requires labor organization; real liberty of travel requires governmental control of the instruments of travel; real liberty in food, clothing, and home requires law to guard against disease and death, threatened by conditions of modern society; real liberty to speak and teach effectively requires organization, educational and religious.<sup class="footnote-ref" id="fnref:3"><a href="#fn:3">3</a></sup></p> </blockquote> <p>Such a view of &ldquo;real liberty&rdquo; as necessitating active state intervention to achieve, expressed in an extreme form by Marxists and socialists of the era, contrasted markedly with traditional liberal ideas of freedom as expressed by John Stuart Mill, but did have judicial precedent in the doctrine of a state&rsquo;s police power as a means to protect the public welfare (as used to mandate vaccination or quarantine).<sup class="footnote-ref" id="fnref:4"><a href="#fn:4">4</a></sup></p> <p>Turn-of-the-century socialist J. R. MacDonald maintained that real liberty was the &ldquo;liberty of a man to fulfill his true being&rdquo;;<sup class="footnote-ref" id="fnref:5"><a href="#fn:5">5</a></sup> to achieve that, individuals would have to yield to the community.<sup class="footnote-ref" id="fnref:6"><a href="#fn:6">6</a></sup></p> <p>Progressives by and large did not advocate for a socialist revolution or for a loss of individualism to this extent, but they did argue that dealing with the &ldquo;conditions of modern society&rdquo;&mdash;particularly the impacts of corporate capitalism&mdash;required more than merely <em>freedom from</em> government meddling. <em>Freedom to</em> act as a private, autonomous individual required active government intervention to maintain. In essence, a person is not free to act if they are dead of smallpox; protecting against this outcome requires more than individual action.</p> <div class="footnotes"> <hr /> <ol> <li id="fn:1">Willrich, Michael, <em>Pox: An American History,</em> (New York: Penguin Press, 2011 г.), 271, 306; <em>Cooley, Thomas McIntyre, A Treatise on the Law of Torts: Or the Wrongs Which Arise Independent of Contract</em> (Callaghan, 1888 г.), 29. <a class="footnote-return" href="#fnref:1">⇡</a></li> <li id="fn:2">Welke, Barbara Young, <em>Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920</em> (Cambridge University Press, 2001 г.), 44, 99. <a class="footnote-return" href="#fnref:2">⇡</a></li> <li id="fn:3">Abbott, Ernest Hamlin et al., &ldquo;Political Temperaments,&rdquo; <em>The Outlook</em> (Outlook Company, 30 July 1904 г.), 729, <a href="https://books.google.com/books?id=8bcRAAAAYAAJ&amp;pg=PA729">https://books.google.com/books?id=8bcRAAAAYAAJ&amp;pg=PA729</a>. <a class="footnote-return" href="#fnref:3">⇡</a></li> <li id="fn:4">See, for example, Jacobson v. Massachusetts, 197 U.S. 11, 26, 29 (U.S. 1905). For additional discussion of the philosophical issues of this debate, see, for example, Isaiah Berlin&rsquo;s discussion of &ldquo;negative liberty&rdquo; (freedom from state limits) and &ldquo;positive liberty&rdquo; (freedom to achieve self realization). Berlin, Isaiah, Four Essays on Liberty (Oxford University P., 1969 г.), 121–22. <a class="footnote-return" href="#fnref:4">⇡</a></li> <li id="fn:5">MacDonald, James Ramsay, <em>Socialism and Government</em> (Independent Labour Party, 1909 г.), 154. <a class="footnote-return" href="#fnref:5">⇡</a></li> <li id="fn:6">Stears, Marc, <em>Progressives, Pluralists, and the Problems of the State : Ideologies of Reform in the United States and Britain, 1909-1926: Ideologies of Reform in the United States and Britain, 1909-1926</em> (OUP Oxford, 2002 г.), 41–42. <a class="footnote-return" href="#fnref:6">⇡</a></li> </ol> </div> Research note: Howard B. White on science and privacy (1951) https://inpropriapersona.com/notes/2019/01/howard-b.-white-on-science-and-privacy-1951/ Wed, 16 Jan 2019 08:20:00 -0800 929a23f69b354c05dd201b39d9eeaec8 <p>Howard White notes that is is not clear &ldquo;how far science can legitimately regard the sacredness of the individual as a restraint upon science.&rdquo;</p> <blockquote> <p>The objection that is sometimes offered to such investigation is one that supposes an inviolable realm of life that is either venerable or shameful or both. It is questionable, however, to oppose the legitimate needs of science from the high ground of &ldquo;spiritual private property.&rdquo; A good political order may require an atmosphere of trust in which not all is known. It may be wise to erect a spiritual statute of limitations. But I could never say that if science really needed to find the unseen flowers or the unfathomed waves of personal experience, it must forbear.</p> <p>Only wisdom, not shame, may justly restrict scientific investigation and only if science itself is the loser in such investigation, or, at least, that is assumed in this discussion. If legitimate political objectives demand what [George] Simmel [in &ldquo;Sociology of Secrecy&rdquo;] calls &ldquo;greedy spying,&rdquo; then let it pass.</p> </blockquote> <p>From Howard B. White, &ldquo;The Right to Privacy,&rdquo; Social Research 18, no. 2 (1951): 180-181.</p> "If an arbitration agreement isn’t accessible, is it still valid?" https://inpropriapersona.com/news/2018/if-an-arbitration-agreement-isnt-accessible-is-it-still-valid/ Sat, 22 Sep 2018 12:38:39 -0700 c8bac33f22abba89c0257cdfd2973040 <p>In a recent First Circuit appeal, <a href="https://www.courtlistener.com/opinion/4535465/natl-fedn-of-the-blind-v-container-store-inc/">National Federation of the Blind v. The Container Store</a>, 2018 WL 4378174 (1st Cir. Sept. 14, 2018), a federal appeals court upheld a lower court&rsquo;s decision that blind customers who signed up for a loyalty program with contract terms that mandated arbitration were not bound to that contract&mdash;because there was no evidence they had any reason to even know that such a provision existed.</p> <p>The Container Store had been sued in a class action by the National Federation of the Blind and several of its members who alleged that the store&rsquo;s point-of-sale terminals had no allowance for accessibility (including no tactile keyboards and no audio capacity for &ldquo;speaking&rdquo; text) and that blind customers had to publicly tell employees their private security information in order to complete many transactions.</p> <p>The Container Store tried to get the case thrown out because the plaintiffs had signed up for their loyalty program&mdash;which contained the mandatory arbitration provision along with a class-action waiver.</p> <p>As <a href="https://www.arbitrationnation.com/no-proof-blind-plaintiffs-aware-arbitration-clause-discrimination-class-action-proceeds-court/">Liz Kramer explained in her post</a> on the decision:</p> <blockquote> <p>[The First Circuit] affirmed the critical findings of the district court: &ldquo;it is undisputed that the in-store plaintiffs had no way of accessing the terms of the loyalty program, including the arbitration agreement&rdquo;; and &ldquo;No store clerk actually informed them that an arbitration agreement existed as a condition of entering the loyalty program.&ldquo;  Therefore, even though &ldquo;inability to read&rdquo; is not generally a defense to contract formation, the court found no arbitration agreement was ever formed with these plaintiffs.  Unlike other situations where plaintiffs who could not read knew or should have known that they were signing documents that implicated legal rights, in this case the court found &ldquo;zero hint&rdquo; that the loyalty program involved terms and conditions.</p> </blockquote> <p>One extra wrinkle: one plaintiff had signed up online instead, and thus potentially could have read the terms and conditions. But because the agreement allowed for modifications by The Container Store at any time, the First Circuit found the entire contract to be &ldquo;illusory&rdquo; and &ldquo;unenforceable&rdquo; under Texas state law (the agreement said it was to be interpreted under Texas law).</p> <p>See also:</p> <ul> <li>Liz Kramer, <a href="https://www.arbitrationnation.com/no-proof-blind-plaintiffs-aware-arbitration-clause-discrimination-class-action-proceeds-court/">No Proof Blind Plaintiffs Aware Of Arbitration Clause, So Discrimination Class Action Proceeds In Court</a>, <a href="https://www.arbitrationnation.com/">Arbitration Nation</a>, Sept. 19, 2018.</li> <li>Karla Gilbride, <a href="https://www.publicjustice.net/appeals-court-rejects-container-stores-hide-the-contract-tricks/">Appeals Court Rejects Container Store’s Hide-the-Contract Tricks</a>, <a href="https://www.publicjustice.net/">Public Justice</a>, Sept. 19, 2018 (Gilbride argued the case before the First Circuit).</li> <li>Press Release: <a href="https://nfb.org/lawsuit-filed-today-alleges-container-store-discriminates-against-blind">Lawsuit Filed Today Alleges The Container Store Discriminates Against the Blind</a>, <a href="https://nfb.org/">National Federation of the Blind</a>, July 20, 2015 (the NFB is a plaintiff in the case).</li> </ul> Research note: The “picket line” of national quarantine (1897) https://inpropriapersona.com/notes/2018/09/the-picket-line-of-national-quarantine-1897/ Sun, 02 Sep 2018 12:27:23 -0700 43c78cbfd20e9f915df53fc5e35d8990 <blockquote> <p>What we want is a permanent, all the year round, high-class quarantine, conducted under national auspices, and clothed with paramount authority. Yellow fever is an exotic. It appears in the country only as the result of importation. The country demands a picket line that cannot be invaded.</p> </blockquote> <p>&ldquo;Facts About Quarantine Laws,&rdquo; <em>The Washington Post</em> (1877-1922), Nov. 18, 1897.</p> "The home is about more than property" https://inpropriapersona.com/articles/the-home-is-about-more-than-property/ Sat, 28 Jul 2018 07:00:00 +0000 81fdc173d79b68762d6c28a5a1e5ea8f <p>While the &ldquo;medieval home was a public, not a private place,&rdquo;<sup class="footnote-ref" id="fnref:1"><a href="#fn:1">1</a></sup> by the eighteenth century, the &ldquo;home&rdquo; in English law increasingly assumed the role of the ultimate of private sanctums:</p> <blockquote> <p>The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter&mdash;all his force dares not cross the threshold of the ruined tenement!<sup class="footnote-ref" id="fnref:2"><a href="#fn:2">2</a></sup></p> </blockquote> <p>That the home is a fortress to be defended both by law and by action is evident in protections for do-it-yourself home defense:</p> <blockquote> <p>[T]he criminal law of many states, like traditional English law, allows a person to use deadly force in defense of one\&rsquo;s home even in some circumstances that do not meet the usual requirements of self-defense. Indeed, it was in this context that Sir William Coke made popular the maxim &ldquo;a man&rsquo;s home is his castle,&rdquo; by which he meant &ldquo;castle&rdquo; in a military sense, describing the legal right of an Englishman to use deadly force in defense of home.<sup class="footnote-ref" id="fnref:3"><a href="#fn:3">3</a></sup></p> </blockquote> <h3 id="property">Property</h3> <p>This privileged status is deeply connected to a much broader conception of the &ldquo;sanctity of private property,&rdquo; a view of property rights derived from, among other sources, the political theories of John Locke (1632-1704) and the common-law analyses of Edward Coke (1552-1634) and William Blackstone (1723-1780).<sup class="footnote-ref" id="fnref:4"><a href="#fn:4">4</a></sup></p> <h4 id="edward-coke">Edward Coke</h4> <p>Coke, an influential sixteenth-to-seventeenth-century English common-law jurist, emphasized property protection, along with &ldquo;due process,&rdquo; as a key component for protecting liberties more generally.<sup class="footnote-ref" id="fnref:5"><a href="#fn:5">5</a></sup> For Coke, English common law was characterized &ldquo;above all by land law and due process, which together formed the basis of English liberties.&rdquo;<sup class="footnote-ref" id="fnref:6"><a href="#fn:6">6</a></sup> Liberties for Coke are broad and relatively imprecise, covering &ldquo;the whole of the fundamental laws of the realm,&rdquo; all of which together &lsquo;make men free.&rsquo;&rdquo;<sup class="footnote-ref" id="fnref:7"><a href="#fn:7">7</a></sup> Liberty did not mean a kind of <em>laissez-faire</em> freedom from government or society; liberty was not &ldquo;limited to a right to be left alone and ignored by the larger world.&rdquo;<sup class="footnote-ref" id="fnref:8"><a href="#fn:8">8</a></sup></p> <h4 id="william-blackstone">William Blackstone</h4> <p>In the eighteenth century, Blackstone argued that the common law provided nearly impregnable protections for property rights: &ldquo;the law &hellip; will not authorize the least violation of [private property]; no, not even for the general good of the community.&rdquo;<sup class="footnote-ref" id="fnref:9"><a href="#fn:9">9</a></sup> Blackstone&rsquo;s position both overstated the &ldquo;absoluteness&rdquo; of private property as allowing for the &ldquo;total exclusion of the right of any other individual in the universe&rdquo;<sup class="footnote-ref" id="fnref:10"><a href="#fn:10">10</a></sup> and understated the actual practices of the government of his time in violating private property in the interests of the community.<sup class="footnote-ref" id="fnref:11"><a href="#fn:11">11</a></sup> Still, the &ldquo;right to exclude others,&rdquo; either by the use of force or through actions for trespass,<sup class="footnote-ref" id="fnref:12"><a href="#fn:12">12</a></sup> nonetheless continued to be a key property-law formulation that became deeply intertwined with a later nineteenth-century articulations of the right to privacy as a &ldquo;right to be let alone.&rdquo; Blackstone&rsquo;s overly absolutist language rejecting &ldquo;the least violation &hellip; even for the general good&rdquo; has been deeply influential for Anglo-American legislatures and judges from the eighteenth century onwards, even though it has not always been followed absolutely.<sup class="footnote-ref" id="fnref:13"><a href="#fn:13">13</a></sup></p> <h4 id="john-locke">John Locke</h4> <p>By the late seventeenth century, &ldquo;property&rdquo; had become part of an interrelated trio&mdash;life, liberty, and property<sup class="footnote-ref" id="fnref:14"><a href="#fn:14">14</a></sup>&mdash;that constituted the core of what Anglo-American political theorists of the eighteenth century, the intellectual descendants of Locke, thought government ought to protect.<sup class="footnote-ref" id="fnref:15"><a href="#fn:15">15</a></sup> Locke, whose influence is evident in foundational American documents like the Declaration of Independence,<sup class="footnote-ref" id="fnref:16"><a href="#fn:16">16</a></sup> made property protection a key requirement of just government in his 1689 work <em>Two Treatises of Government</em>:</p> <blockquote> <p>The reason why men enter into society, is the preservation of their property. &hellip; [M]en, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society &hellip; with an intention in every one the better to preserve himself, his liberty and property.<sup class="footnote-ref" id="fnref:17"><a href="#fn:17">17</a></sup></p> </blockquote> <p>Political scientist James R. Stoner, Jr., summarizes Locke&rsquo;s core position as being that &ldquo;the end of government is the preservation of property.&rdquo;<sup class="footnote-ref" id="fnref:18"><a href="#fn:18">18</a></sup></p> <h4 id="entick-v-carrington"><em>Entick v. Carrington</em></h4> <p>The English judiciary, a primary source of American legal precedent until well into the nineteenth century, drew on theorists like Locke and jurists like Blackstone to situate legal protections for the home in property rights. For example, in <em>Entick v. Carrington,</em> a foundational English case from 1765, Lord Camden, sitting in judgment of the search and seizure of letters kept in a private home, wrote:</p> <blockquote> <p>The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. &hellip; By the laws of England, every invasion of private property, be it ever so minute, is a trespass. &hellip; Papers are the owner&rsquo;s goods and chattels; <em>they are his dearest property</em> &hellip; where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass. (Emphasis added.)<sup class="footnote-ref" id="fnref:19"><a href="#fn:19">19</a></sup></p> </blockquote> <p>Later, referring back to <em>Entick</em>, the United States Supreme Court in 1886 (and then again in 1965) argued that these principles &ldquo;affect the very essence of constitutional liberty and security &hellip;; they apply to all invasions on the part of the government and its employés [sic] of the sanctity of a man&rsquo;s home and the privacies of life.&rdquo;<sup class="footnote-ref" id="fnref:20"><a href="#fn:20">20</a></sup></p> <h3 id="more-than-property-alone">More than Property Alone</h3> <p>As the Supreme Court&rsquo;s statements about <em>Entick</em> imply, though, property alone was not the only value at issue when courts acted to protect &ldquo;the sanctity of a man&rsquo;s home and the privacies of life.&rdquo;<sup class="footnote-ref" id="fnref:21"><a href="#fn:21">21</a></sup> When it came to domestic privacy, something even more fundamental is apparent, as one modern legal commentator explained:</p> <blockquote> <p>The special status of the home in many areas of law is consistent with philosophical accounts of property as an extension of personhood. &hellip; When a person&rsquo;s identity becomes closely bound up with certain things with society&rsquo;s acquiescence, as in the example of a wedding ring, there arises a moral expectation and presumptive entitlement to the continuation of that thing. Some objects of property are more closely bound up with personhood than others, and therefore entitled to greater protection under the law. In the range of property assets, the private home generally rests at the highly personal end of the spectrum, thus explaining why autonomy, security, privacy, memory, and expression are so valued in this personal space &hellip; Its highest value is not as a commodity.<sup class="footnote-ref" id="fnref:22"><a href="#fn:22">22</a></sup></p> </blockquote> <p>In short, property rights may have been critical for liberty generally and for home protection specifically, but the ideology behind the private domestic home extends beyond property protections alone.</p> <p>In 1789, when the Fourth Amendment to the United States Constitution&mdash;&ldquo;the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated&rdquo;&mdash;was ratified as a means to protect against the kinds of invasions by the English government the colonists had witnessed in the lead-up to war, <em>Entick,</em> along with Coke, Blackstone and Locke, provided a common foundational understanding. As such, in true common-law fashion, American courts applied&mdash;and later extended&mdash;concepts of property and trespass drawn from these older English views to interpret the meaning of the amendment.</p> <p>Although interpretations and applications of the Fourth Amendment have evolved since 1789, two broad themes remain relatively consistent. First, the amendment is commonly interpreted as being &ldquo;predicated on a spatial conception of privacy&rdquo; because of its deep association with property.<sup class="footnote-ref" id="fnref:23"><a href="#fn:23">23</a></sup> Second, and even more critically, American courts have typically agreed that it is &ldquo;intended to protect the sanctity of private property from intrusions by public officials&rdquo; because of the history of its development in England and then the colonies: the Fourth Amended was written in response to actions by public officials from the fifteenth century onwards who had used broad powers to search homes to hunt for &ldquo;libel, heresy and political dissent,&rdquo; and then, in the American colonies, to enforce the collection of taxes and duties.<sup class="footnote-ref" id="fnref:24"><a href="#fn:24">24</a></sup></p> <p>Drawing on this history of the Fourth Amendment, courts have often turned to English decisions from the eighteenth century to support the broad, deeply felt contention that &ldquo;that homes were protected from arbitrary action by government officials.&rdquo;<sup class="footnote-ref" id="fnref:25"><a href="#fn:25">25</a></sup></p> <p>The Fourth Amendment was therefore a product of the same concerns that resulted in the law of trespass being applied to public actors: &ldquo;to guard individuals against improper intrusion into their buildings where they had the exclusive right of possession.&rdquo;</p> <blockquote> <p>[It] was intended to preserve privacy by discouraging law enforcement trespasses, and that conception of privacy prevailed unchallenged until the second decade of the Twentieth century when the Supreme Court heard its first wiretap case.&rdquo;<sup class="footnote-ref" id="fnref:26"><a href="#fn:26">26</a></sup></p> </blockquote> <p>In modern American law, the home still remains a special place: for example, the Supreme Court in 1961, citing <em>Entick</em> (1765) and <em>Boyd v. United States</em> (1886) wrote, &ldquo;At the very core of the [Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.&rdquo;<sup class="footnote-ref" id="fnref:27"><a href="#fn:27">27</a></sup></p> <p>And in any hierarchy of American liberties and freedoms, the home continues to be central, as it has been from before the country was founded&mdash;even if the details and contours of that centrality have varied along with societal and technological changes.</p> <div class="footnotes"> <hr /> <ol> <li id="fn:1">Witold Rybczynski, <em>Home: A Short History of an Idea</em> (New York: Viking, 1986), 26. <a class="footnote-return" href="#fnref:1">⇡</a></li> <li id="fn:2"><em>Miller v. United States</em>, 357 U.S. 301, 307 (1958). <a class="footnote-return" href="#fnref:2">⇡</a></li> <li id="fn:3">John Fee, &ldquo;Eminent Domain and the Sanctity of Home,&rdquo; <em>Notre Dame L. Rev.</em> 81 (2005-2006): 787. <a class="footnote-return" href="#fnref:3">⇡</a></li> <li id="fn:4">Joshua Getzler, &ldquo;Theories of Property and Economic Development,&rdquo; <em>The Journal of Interdisciplinary History</em> 26, no. 4 (1996): 641. <a class="footnote-return" href="#fnref:4">⇡</a></li> <li id="fn:5">James R. Stoner Jr., <em>Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism</em> (Lawrence: University Press of Kansas, 1992), 3-4. <a class="footnote-return" href="#fnref:5">⇡</a></li> <li id="fn:6">Ibid. at 19. <a class="footnote-return" href="#fnref:6">⇡</a></li> <li id="fn:7">Ibid. at 21. <a class="footnote-return" href="#fnref:7">⇡</a></li> <li id="fn:8">Ibid. <a class="footnote-return" href="#fnref:8">⇡</a></li> <li id="fn:9">Jonathan L. Hafetz, &ldquo;Man&rsquo;s Home Is His Castle: Reflections on the Home, the Family, and Privacy during the Late Nineteenth and Early Twentieth Centuries, A,&rdquo; <em>Wm. &amp; Mary J. Women &amp; L.</em> 8 (2001-2002): 180; Sir William Blackstone, William Draper Lewis, and Barron Field, <em>Commentaries on the Laws of England: In Four Books</em> (R. Welsh &amp; Co., 1902), 139. <a class="footnote-return" href="#fnref:9">⇡</a></li> <li id="fn:10">Joan Williams, &ldquo;The Rhetoric of Property,&rdquo; <em>Iowa L. Rev.</em> 83 (1997-1998): 281. <a class="footnote-return" href="#fnref:10">⇡</a></li> <li id="fn:11">Ibid. <a class="footnote-return" href="#fnref:11">⇡</a></li> <li id="fn:12">Hafetz, &ldquo;Man&rsquo;s Home Is His Castle,&rdquo; 180. Note that the term &ldquo;trespass&rdquo; has changed over time and once referred more to a &ldquo;wrong,&rdquo; not just a wrong done against property. See, e.g., S.F.C. Milsom, <em>Historical Foundations of the Common Law</em>, Second Edition (London: Butterworths, 1981), 285. <a class="footnote-return" href="#fnref:12">⇡</a></li> <li id="fn:13">Williams, &ldquo;The Rhetoric of Property,&rdquo; 281-82. <a class="footnote-return" href="#fnref:13">⇡</a></li> <li id="fn:14">Thomas Jefferson changed this trio to &ldquo;Life, Liberty, and the pursuit of Happiness&rdquo; in the Declaration of Independence. <a class="footnote-return" href="#fnref:14">⇡</a></li> <li id="fn:15">John Lewis, <em>Advice to Posterity, Concerning a Point of the Last Importance</em> (London: Printed for J. Freeman, 1755), 3; Constitution of New Hampshire, pt. I (1784); Constitution of the United States; Charles E Shattuck, &ldquo;The True Meaning of the Term &lsquo;Liberty&rsquo; in Those Clauses in the Federal and State Constitutions Which Protect &lsquo;Life, Liberty, and Property,&rsquo;&rdquo; <em>Harvard Law Review</em> 4, no. 8 (March 15, 1891): 368. <a class="footnote-return" href="#fnref:15">⇡</a></li> <li id="fn:16">Kermit Hall and Peter Karsten, <em>The Magic Mirror: Law in American History</em> (Oxford University Press, 2009), 61. <a class="footnote-return" href="#fnref:16">⇡</a></li> <li id="fn:17">John Locke, <em>Two Treatises of Government</em> (for Whitmore and Fenn, and C. Brown, 1821), 379. <a class="footnote-return" href="#fnref:17">⇡</a></li> <li id="fn:18">Stoner, <em>Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism</em>, 149. <a class="footnote-return" href="#fnref:18">⇡</a></li> <li id="fn:19"><em>Entick v. Carrington</em>, (1765) 95 English Reports 807 (King&rsquo;s Bench Division); <em>Boyd v. United States</em>, 116 US 616, 628-30 (1886). <a class="footnote-return" href="#fnref:19">⇡</a></li> <li id="fn:20"><em>Boyd v. United States</em>, 116 US at 630; Griswold v. Connecticut, 381 US 479, 484-85 (1965). <a class="footnote-return" href="#fnref:20">⇡</a></li> <li id="fn:21"><em>Boyd v. United States</em>, 116 US at 630. <a class="footnote-return" href="#fnref:21">⇡</a></li> <li id="fn:22">Fee, &ldquo;Eminent Domain and the Sanctity of Home,&rdquo; 787-88. <a class="footnote-return" href="#fnref:22">⇡</a></li> <li id="fn:23">Susan Brenner, <em>Law in an Era of Smart Technology</em> (Oxford University Press, 2007), 4. <a class="footnote-return" href="#fnref:23">⇡</a></li> <li id="fn:24">Brenner, &ldquo;Fourth Amendment in an Era of Ubiquitous Technology, The,&rdquo; 4-5. <a class="footnote-return" href="#fnref:24">⇡</a></li> <li id="fn:25">Ibid. at 6. <a class="footnote-return" href="#fnref:25">⇡</a></li> <li id="fn:26">Ibid. at 7-8. <a class="footnote-return" href="#fnref:26">⇡</a></li> <li id="fn:27"><em>Silverman v. United States</em>, 365 US 505, 511-12 (1961); <em>Entick v. Carrington</em>, (1765) 95 English Reports 807 (King&rsquo;s Bench Division); <em>Boyd v. United States</em>, 116 US 616, 616, 626-30 (1886). See also <em>Kyllo v. United States</em>, 533 US 27, 37-38 (2001). <a class="footnote-return" href="#fnref:27">⇡</a></li> </ol> </div> Research note: Property, the home, and Carpenter v. United States https://inpropriapersona.com/notes/2018/06/property-the-home-and-carpenter-v.-united-states/ Wed, 27 Jun 2018 00:00:00 +0000 db8e10b3fa447f3e8d646b9f47198057 <p>As I <a href="https://inpropriapersona.com/notes/2018/06/orin-kerr-trespass-was-never-the-exclusive-fourth-amendment-test-2012/">noted previously</a>, Orin Kerr has critiqued the Supreme Court&rsquo;s version of Fourth Amendment history and the incorrect (but widely shared) characterization that Fourth Amendment searches have always been based on a property-based trespass framework.<sup class="footnote-ref" id="fnref:1"><a href="#fn:1">1</a></sup> On June 22, 2018, the Supreme Court finally handed down <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf"><em>Carpenter v. United States</em></a>, 585 U.S. ___ (2018)<sup class="footnote-ref" id="fnref:2"><a href="#fn:2">2</a></sup>, which once again reiterated this mischaracterization&mdash;even though Justice Roberts&rsquo; majority opinion did so to yet again move away from a reliance on trespass and even though other articles and books by Kerr were cited numerous times by various justices.</p> <p>In reviewing the case, I would tentatively suggest that <em>Carpenter</em> does not differ from historical precedent because it rejects a concrete property- or trespass-based approach to analyzing the Fourth Amendment, but rather because it, surprisingly, makes little reference, even rhetorically, to the domestic home (or ideologically related concepts like family life or chilren). Location data, like that in <em>Carpenter</em>, could allow a (rough, but ever-improving) view &ldquo;inside&rdquo; domestic spaces&mdash;but, surprisingly, Roberts barely gestures at this so-very-common rhetorical justification for American privacy.</p> <p>Justice Kennedy&rsquo;s dissent does discuss the connection to the domestic home when discussing <em>Katz</em>&rsquo;s &ldquo;property not people&rdquo; formulation, though he uses it (not entirely correctly, I would suggest) to argue that it is <em>property</em> that is key&mdash;I would instead suggest that the domestic home has always meant more than mere property rights alone would suggest (which is why I argue that domestic spaces&mdash; in particular, and not property more generally, so often appears in Fourth Amendment analyses). As Kerr pointed out, a pure trespass analysis has never characterized the Court&rsquo;s approach to the Fourth Amendment, even at the Founding, despite various attempts (like Kennedey&rsquo;s) to make it so.</p> <blockquote> <p><em>Katz</em> did not abandon reliance on property-based concepts. The Court in Katz analogized the phone booth used in that case to a friend&rsquo;s apartment, a taxicab, and a hotel room. 389 U. S., at 352, 359. So when the defendant &ldquo;shu[t] the door behind him&rdquo; and &ldquo;pa[id] the toll,&rdquo; <em>id.</em>, at 352, he had a temporary interest in the space and a legitimate expectation that others would not intrude, much like the interest a hotel guest has in a hotel room, <em>Stoner v. California</em>, 376 U. S. 483 (1964), or an overnight guest has in a host’s home, Minnesota v. Olson, 495 U. S. 91 (1990). The Government intruded on that space when it attached a listening device to the phone booth. <em>Katz</em>, 389 U. S., at 348.</p> </blockquote> <p><em>Carpenter</em>, 2018 WL at *20 (Kennedy, J., dissenting).</p> <h4 id="additional-relevant-quotes-from-carpenter">Additional Relevant Quotes from <em>Carpenter</em></h4> <p>Below, without analysis as yet, are a few quotes from <em>Carpenter</em> that are potentially relevant to a further exploration of this issue.</p> <blockquote> <p>For much of our history, Fourth Amendment search doctrine was &ldquo;tied to common-law trespass&rdquo; and focused on whether the Government &ldquo;obtains information by physically intruding on a constitutionally protected area.&rdquo; <em>United States v. Jones</em>, 565 U. S. 400, 405, 406, n. 3 (2012). More recently, the Court has recognized that &ldquo;property rights are not the sole measure of Fourth Amendment violations.&rdquo; <em>Soldal v. Cook County</em>, 506 U. S. 56, 64 (1992). In <em>Katz v. United States</em>, 389 U. S. 347, 351 (1967), we established that &ldquo;the Fourth Amendment protects people, not places,&rdquo; and expanded our conception of the Amendment to protect certain expectations of privacy as well. When an individual &ldquo;seeks to preserve something as private,&rdquo; and his expectation of privacy is &ldquo;one that society is prepared to recognize as reasonable,&rdquo; we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. <em>Smith</em>, 442 U. S., at 740 (internal quotation marks and alterations omitted).</p> </blockquote> <p><em>Carpenter</em>, 2018 WL at *6 (Roberts, J.).</p> <blockquote> <p>JUSTICE KENNEDY believes that there is such a rubric [for resolving which expectations of privacy deserve protection]&mdash;the &ldquo;property-based concepts&rdquo; that <em>Katz</em> purported to move beyond. &hellip; JUSTICE THOMAS (and to a large extent JUSTICE GORSUCH) would have us abandon Katz and return to an exclusively property-based approach. &hellip; <em>Katz</em> of course &ldquo;discredited&rdquo; the &ldquo;premise that property interests control,&rdquo; 389 U. S., at 353, and we have repeatedly emphasized that privacy interests do not rise or fall with property rights, see, e.g., United States v. Jones, 565 U. S. 400, 411 (2012) (refusing to &ldquo;make trespass the exclusive test&rdquo;); <em>Kyllo v. United States</em>, 533 U.S. 27, 32 (2001) (“We have since decou- pled violation of a person’s Fourth Amendment rights from trespassory violation of his property.”).</p> </blockquote> <p><em>Carpenter</em>, 2018 WL at *6, n.1 (Roberts, J.).</p> <blockquote> <p>The Katz test strays even further from the text by focusing on the concept of “privacy.” The word “privacy” does not appear in the Fourth Amendment (or anywhere else in the Constitution for that matter). Instead, the Fourth Amendment references “[t]he right of the people to be secure.” It then qualifies that right by limiting it to “persons” and three specific types of property: “houses, papers, and effects.” By connecting the right to be secure to these four specific objects, “[t]he text of the Fourth Amendment reflects its close connection to property.” Jones, supra, at 405, 132 S.Ct. 945. “[P]rivacy,” by contrast, “was not part of the political vocabulary of the [founding]. Instead, liberty and privacy rights were understood largely in terms of property rights.” Cloud, Property Is Privacy: Locke and Brandeis in the Twenty-First Century, 55 Am. Crim. L. Rev. 37, 42 (2018).</p> </blockquote> <p><em>Carpenter</em>, 2018 WL at *33 (Thomas, J., dissenting).</p> <blockquote> <p>Those who ratified the Fourth Amendment were quite familiar with the notion of security in property. Security in property was a prominent concept in English law. See, e.g., 3 W. Blackstone, Commentaries on the Laws of England 288 (1768) (&rdquo;[E]very man&rsquo;s house is looked upon by the law to be his castle&rdquo;); 3 E. Coke, Institutes of Laws of England 162 (6th ed. 1680) (&rdquo;[F]or a man[&lsquo;]s house is his Castle, &amp; domus sua cuique est tutissimum refugium [each man&rsquo;s home is his safest refuge]&ldquo;). The political philosophy of John Locke, moreover, “permeated the 18th-century political scene in America.” Obergefell v. Hodges, 576 U.S. ––––, ––––, 135 S.Ct. 2584, 2634, 192 L.Ed.2d 609 (2015) (THOMAS, J., dissenting).</p> </blockquote> <p><em>Carpenter</em>, 2018 WL at *33 (Thomas, J., dissenting).</p> <blockquote> <p>That is what makes the majority&rsquo;s opinion so puzzling. It decides that a “search” of Carpenter occurred within the meaning of the Fourth Amendment, but then it leaps straight to imposing requirements that—until this point —have governed only actual searches and seizures. See ante, at –––– – ––––. Lost in its race to the finish is any real recognition of the century&rsquo;s worth of precedent it jeopardizes. For the majority, this case is apparently no different from one in which Government agents raided Carpenter&rsquo;s home and removed records associated with his cell phone.</p> </blockquote> <p><em>Carpenter</em>, 2018 WL at *50 (Alito, J., dissenting).</p> <blockquote> <p>Second, I doubt that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right. Where houses are concerned, for example, individuals can enjoy Fourth Amendment protection without fee simple title. Both the text of the Amendment and the common law rule support that conclusion. “People call a house ‘their’ home when legal title is in the bank, when they rent it, and even when they merely occupy it rent free.” Carter, 525 U.S., at 95–96, 119 S.Ct. 469 (Scalia, J., concurring). That rule derives from the common law. Oystead v. Shed, 13 Mass. 520, 523 (1816) (explaining, citing “[t]he very learned judges, Foster, Hale, and Coke,” that the law “would be as much disturbed by a forcible entry to arrest a boarder or a servant, who had acquired, by contract, express or implied, a right to enter the house at all times, and to remain in it as long as they please, as if the object were to arrest the master of the house or his children”). That is why tenants and resident family members—though they have no legal title—have standing to complain about searches of the houses in which they live. Chapman v. United States, 365 U.S. 610, 616–617, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), Bumper v. North Carolina, 391 U.S. 543, 548, n. 11, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).</p> </blockquote> <p><em>Carpenter</em>, 2018 WL at *64 (Gorsuch, J., dissenting).</p> <div class="footnotes"> <hr /> <ol> <li id="fn:1">Orin S. Kerr, &ldquo;<a href="https://doi.org/10.1086/670228">The Curious History of Fourth Amendment Searches</a>,&rdquo; <em>The Supreme Court Review</em> 2012, no. 1 (2012): 68. See also <em><a href="https://www.courtlistener.com/opinion/622304/united-states-v-jones/">United States v. Jones</a></em>, 132 S. Ct. 945, 950 (2012) (&ldquo;for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (&lsquo;persons, houses, papers, and effects&rsquo;) it enumerates&rdquo;); <a href="https://www.courtlistener.com/opinion/107564/katz-v-united-states/"><em>Katz v. United States</em></a>, 389 U.S. 347 (1967). <a class="footnote-return" href="#fnref:1">⇡</a></li> <li id="fn:2">Since this case is so new, I will rely on Westlaw for page numbers: <em>Carpenter v. U.S.</em>, 2018 WL 3073916. <a class="footnote-return" href="#fnref:2">⇡</a></li> </ol> </div> "Democracy and the privacy of communications (1967)" https://inpropriapersona.com/articles/democracy-and-the-privacy-of-communications-1967/ Sat, 09 Jun 2018 00:00:00 +0000 b4efba1ab5ec3734d846e92ec57a9d7c <p>In the year before the Supreme Court decided <a href="https://inpropriapersona.com/articles/katz-and-berger-and-a-reasonable-expectaction-of-privacy/"><em>Katz</em> and <em>Berger</em></a>, President <a href="https://en.wikipedia.org/wiki/Lyndon_B._Johnson">Lyndon B. Johnson</a>&rsquo;s Crime Commission <a href="https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=42">concluded</a>:</p> <blockquote> <p>The present status of the law with respect to wiretaps and bugging is intolerable. It serves the interests neither of privacy nor of law enforcement.<sup class="footnote-ref" id="fnref:1"><a href="#fn:1">1</a></sup></p> </blockquote> <p>But why does informational privacy matter? Why not simply revise the law to favor law enforcement? In terms reflect the classic &ldquo;<a href="https://en.wikipedia.org/wiki/Marketplace_of_ideas">marketplace of ideas</a>&rdquo; justifications of the First Amendment, the Commission explained the importance of privacy to democracy: <aside> Robert Horwitz <a href="https://inpropriapersona.com/articles/the-irony-of-regulatory-reform/">discusses related ideas</a> in his work on communications regulation in the United States. He writes that a key assumption behind the marketplace conception of free speech is that &ldquo;a democratic public sphere will emerge consequent to the unimpeded, private actions of speech-entrepreneurs.&rdquo; </aside></p> <blockquote> <p>In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one&rsquo;s speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas. When dissent from the popular view is discouraged, intellectual controversy is smothered, the process for testing new concepts and ideas is hindered and desireable change is slowed. External restraints, of which electronic surveillance is but one possibility, are thus repugnant to citizens of such a society.<sup class="footnote-ref" id="fnref:2"><a href="#fn:2">2</a></sup></p> </blockquote> <p>Whether this democratic justification for broadly unconstrained speech still fully holds when &ldquo;<a href="https://inpropriapersona.com/fake-news-libel-press-protections-executive-power/">fake news</a>&rdquo; and <a href="https://www.nytimes.com/2017/09/13/opinion/berkeley-dean-erwin-chemerinsky.html">hate speech</a> play an unsettling role in the public sphere&mdash;as many believe it does in 2018&mdash;is a matter of active debate.</p> <p>Relatedly, concerns about government monitoring and <a href="https://www.nytimes.com/2018/06/07/us/politics/times-reporter-phone-records-seized.html">invasions of private communications</a> (perhaps in the guise of chasing &ldquo;<a href="https://inpropriapersona.com/articles/publishing-leaked-materials-pentagon-papers-case/">leaks</a>&rdquo; to the press), and the potential of such interference to inhibit &ldquo;desireable change,&rdquo; is also a live and concerning issue in 2018.</p> <aside>Personally, I suspect it captures something important and even special about the American First Amendment---but also, perhaps, puts too much faith in unregulated markets. </aside> <p>Given issues like these, is the Crime Commission&rsquo;s 1967 justification for communications privacy a hopelessly outdated and even naïve one in 2018?</p> <div class="footnotes"> <hr /> <ol> <li id="fn:1"><em><a href="https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=42">The Challenge of Crime in a Free Society</a>: A Report by the President’s Commission on Law Enforcement and Administration of Justice</em> (Washington, D.C.: U.S. Govt. Print. Off., 1967): 203. <a class="footnote-return" href="#fnref:1">⇡</a></li> <li id="fn:2">Ibid., 202. <a class="footnote-return" href="#fnref:2">⇡</a></li> </ol> </div> Research note: Orin Kerr: trespass was never the exclusive Fourth Amendment test (2012) https://inpropriapersona.com/notes/2018/06/orin-kerr-trespass-was-never-the-exclusive-fourth-amendment-test-2012/ Mon, 04 Jun 2018 00:00:00 +0000 19b327f5cbdd5d5d34e0255af58afb43 <p>Orin Kerr, in &ldquo;<a href="https://doi.org/10.1086/670228">The Curious History of Fourth Amendment Searches</a>,&rdquo; reinvestigates the history of how courts interpreted &ldquo;searches&rdquo; under the Fourth Amendment&mdash;and realizes that the &ldquo;widely shared assumption&rdquo; of modern jurists that the &ldquo;pre-<em><a href="https://www.courtlistener.com/opinion/107564/katz-v-united-states/">Katz</a></em> search doctrine was in fact based on trespass law&rdquo; is, in actual fact, <em>wrong</em>.<sup class="footnote-ref" id="fnref:1"><a href="#fn:1">1</a></sup></p> <blockquote> <p>Neither the original understanding nor Supreme Court doctrine equated searches with trespass. &hellip; In short, the common wisdom is false. Before <em>Katz</em>, the Court did not use a specific formulation to identify what counted as a Fourth Amendment search. <em>Supreme Court cases on the meaning of &ldquo;searches&rdquo; generally reasoned by analogy to the canonical example of home invasion.</em> The Court began to focus on physical intrusion as a guide starting in the 1920s.<sup class="footnote-ref" id="fnref:2"><a href="#fn:2">2</a></sup></p> </blockquote> <p>It was really <em><a href="https://www.courtlistener.com/opinion/101320/olmstead-v-united-states/">Olmstead v. United States</a></em>, decided in 1928, that &ldquo;physical penetration of a protected area&rdquo;&mdash;still not quite <em>trespass</em>&mdash;became a key guide to decided when a search had occurred.<sup class="footnote-ref" id="fnref:3"><a href="#fn:3">3</a></sup> And it was in <em>Katz</em>, which has become known for the idea that &ldquo;privacy protects people, not places,&rdquo; that the &ldquo;Court further cemented the property-to-privacy myth.&rdquo;<sup class="footnote-ref" id="fnref:4"><a href="#fn:4">4</a></sup></p> <div class="footnotes"> <hr /> <ol> <li id="fn:1">Orin S. Kerr, “<a href="https://doi.org/10.1086/670228">The Curious History of Fourth Amendment Searches</a>,” <em>The Supreme Court Review</em> 2012, no. 1 (2012): 68. See also <em><a href="https://www.courtlistener.com/opinion/622304/united-states-v-jones/">United States v. Jones</a></em>, 132 S. Ct. 945, 950 (2012) (&ldquo;for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (&lsquo;persons, houses, papers, and effects&rsquo;) it enumerates&rdquo;); <a href="https://www.courtlistener.com/opinion/107564/katz-v-united-states/"><em>Katz v. United States</em></a>, 389 U.S. 347 (1967). <a class="footnote-return" href="#fnref:1">⇡</a></li> <li id="fn:2">Kerr, &ldquo;Curious History,&rdquo; 2-3 (emphasis added). <a class="footnote-return" href="#fnref:2">⇡</a></li> <li id="fn:3">Kerr, &ldquo;Curious History,&rdquo; 3; <em><a href="https://www.courtlistener.com/opinion/101320/olmstead-v-united-states/">Olmstead v. United States</a></em>, 277 U.S. 438 (1928). <a class="footnote-return" href="#fnref:3">⇡</a></li> <li id="fn:4">Kerr, &ldquo;Curious History,&rdquo; 3; <em>Katz</em>, 389 U.S. at 352-53. <a class="footnote-return" href="#fnref:4">⇡</a></li> </ol> </div> Research note: Protecting the nation’s private homes by policing the public sphere https://inpropriapersona.com/notes/2018/06/protecting-the-nations-private-homes-by-policing-the-public-sphere/ Fri, 01 Jun 2018 00:00:00 +0000 87a459034e0273680f3c23cf4fcdeed2 <blockquote> <p>Beginning in the 1860s, reformers attempted to protect the nation’s private homes by policing the public sphere. Temperance advocates, for example, urged controls on establishments serving liquor in order to keep men from bringing vice home to wives and children. In a parallel logic, reformers, including many nineteenth-century feminists, fought the &ldquo;contamination&rdquo; of and by prostitutes with the knowledge that disease contracted in the public sphere could infect women whose husbands frequented prostitutes. Accordingly, middle-class women and children needed protection from male vice. Moral reform movements led to widespread changes in postwar American society, including new surveillance of urban vice districts and restrictions on taverns and liquor licensing.</p> </blockquote> <p>&mdash; Molly McGarry, “Spectral Sexualities: Nineteenth-Century Spiritualism, Moral Panics, and the Making of U.S. Obscenity Law,” <i>Journal of Women’s History</i> 12, no. 2 (2000): 19.</p> Research note: The postal network is a liminal space between public and private https://inpropriapersona.com/notes/2018/06/the-postal-network-is-a-liminal-space-between-public-and-private/ Fri, 01 Jun 2018 00:00:00 +0000 115fc68c52461722b40a37ca07462010 <blockquote> <p>The Comstock Law shifted censorship from the urban public sphere to the liminal space between the public sphere and private sphere&mdash;from bookstores, newsstands, and brothels to the mail. Attention to this site occurred in addition to, not in place of, older, more direct forms of policing. Indeed, censorship’s new ground reflected moral purity campaigners’ concerns that the defiled public sphere increasingly needed to be controlled to keep it from seeping into the private. Comstock was convinced that the mail was a unique conduit between public and private, and, in a report to the NYSSV, he argued that &ldquo;&lsquo;the mails of the United States have been the channel above all others through which hundreds of thousands of insidious and corrupt publications have gone out to schools, seminaries, male and female colleges and the homes of our land.&rsquo;&rdquo;</p> </blockquote> <p>&mdash; Molly McGarry, “Spectral Sexualities: Nineteenth-Century Spiritualism, Moral Panics, and the Making of U.S. Obscenity Law,” <i>Journal of Women’s History</i> 12, no. 2 (2000): 21.</p> Research note: Secrecy versus privacy (re: abortion in Ireland) https://inpropriapersona.com/notes/2018/05/secrecy-versus-privacy-re-abortion-in-ireland/ Sat, 26 May 2018 00:00:00 +0000 82a252d20d4c9d2b6cae05887efe8773 <p>On May 25, 2018, Una Mullally wrote the following in <em>The Irish Times</em> in response to the landlslide vote to repeal the constitutional prohibition on abortion in Ireland:</p> <blockquote> <p><strong>Secrecy is toxic</strong></p> <p>So what does this all mean? I bumped into the theatre-maker Grace Dyas in the RDS, “Today I feel accepted, loved, cherished.” This wasn’t just about abortion. It was about women feeling equal and valued, liberated and supported. “We did it,” everyone kept saying. “Landslide,” was the most repeated word. “Secrecy is not the same as private. Secrecy is toxic. Private is mature and grown up,” one campaigner said in the hotel across the road from the RDS. No more. No more secrecy, no more shame, no more stigma, only support, kindness, and care.</p> </blockquote> <p>Una Mullally, &ldquo;<a href="https://www.irishtimes.com/news/politics/una-mullally-referendum-shows-us-there-is-no-middle-ireland-just-ireland-1.3509905">Referendum shows us there is no Middle Ireland, just Ireland</a>: &lsquo;The fiction of Ireland as a conservative, dogmatically Catholic country has been shattered,&rsquo;&rdquo; <em>The Irish Times</em>, May 25, 2018.</p> Teaching note: Lesson from the last week of my first online class: don’t try to duplicate the in-person experience https://inpropriapersona.com/notes/2018/05/lesson-from-the-last-week-of-my-first-online-class-dont-try-to-duplicate-the-in-person-experience/ Sun, 20 May 2018 00:00:00 +0000 f7c3ffe89b7a2320212ba7ca059609bc <p>This upcoming week is the last one of my first online class (U.S. History, covering Reconstruction to the present day).</p> <p>At this point, I&rsquo;ve decided on a key takeaway:</p> <p>Fundamentally, asynchronous online classes are simply not the same thing as in-person classes. This seems obvious&hellip; but many people, myself included, have been trying to replicate the core aspects of in-person classes (especially teaching people to think critically, challenging preconceptions, encouraging analysis over summary, and so on) through technology, extra work by the prof, etc. I&rsquo;ve decided none of it works. Without a real-time, synchronous element&mdash;full-out live videochat with a full class&mdash;online education will never duplicate most in-person classes.</p> <p>Why?</p> <p><em>Because online classes are best at one aspect of teaching and learning: factual knowledge transfer. That&rsquo;s it.</em></p> <p>Many people seem surprised that factual knowledge transfer <em>isn&rsquo;t</em> what I do when I teach in person, and these are likely the people who keep pushing online classes are perfect replacements. And for certain kinds of material&mdash;into science classes, maybe, especially when taught as vast lectures&mdash;that may be true. But that&rsquo;s not what I teach.</p> <p>So I&rsquo;ve decided to simply accept this and reframe the class accordingly. I push out readings, lots of short exercises, lots of routine multiple-choice questions that push students to look over the material, and generally emphasize learning and regurgitating facts. And I select good (in the sense that I&rsquo;ve done the checking of validity, sources, etc.), challenging, informative factual material.</p> <aside>This also makes the <i>selection</i> of facts absolutely key, of course, since there is no direct access to "true facts" in history; not being able to teach much about this aspect is the most concerning part of the whole business. Nothing is neutral or objective, but some materials are well sourced and well supported&mdash;and that's the goal.</aside> <p>And that&rsquo;s, well, OK, in a real-world pragmatic sense (if imperfect and problematic and a whole other story about what happens when history is misused&hellip;). Actually, such an emphasize-the-facts history class creates a certain (imperfect) baseline level of factual knowledge that it would be really nice for my in-person students to already have (they usually don&rsquo;t).</p> <aside>Notably, students in my in-person classes, especially those who are worried at the beginning, all say this kind of approach to history is the kind of thing they always<i>_hate</i>.</aside> <p>I&rsquo;m left with the nagging feeling that the two classes&mdash;which are given the same number and identical descriptions in the catalog&mdash;should actually be two entirely different catalog entries. They both have value, but they are in no way equivalent.</p> <p>In any case, this realization fundamentally changes my approach to creating and running such classes. I will focus on careful selection of material, careful structuring in advance, maximum automation, maximum pegagogical repetition and recurring small-scale quizzes and testing, and all the kinds of things tools like, say, Duolingo have pioneered. And that&rsquo;s fine (imperfect, but fine). It just doesn&rsquo;t produce better thinkers, improved analysis, or more effective communicatiors. (One-way video lectures are a poor substitue, though they have their uses.)</p> <p>But it does provide students with facts that can hopefully be useful for them in critically analyzing the present in light of the past&hellip; as long as they are taught how to do this in some other class (regardless of the discipline).</p> Research note: Science, Religion, and Temperance: pamphlets from 1880 https://inpropriapersona.com/notes/2018/05/science-religion-and-temperance-pamphlets-from-1880/ Sun, 06 May 2018 00:00:00 +0000 092b70a657f45d2fffd854f46a390b2b <p>Science, often combined with religion rather than framed as being in opposition, played an importance role in justifying and enabling new intrusions into Americans&rsquo; private lives leading up to Prohibition.</p> <p>A <a href="https://books.google.com/books?id=dITaAAAAMAAJ">collection of pamphlets and writings</a> gathered together to support the National Temperance Society in 1880 provides a good example of the science-religion to justify and support the <a href="https://en.wikipedia.org/wiki/Temperance_movement">Temperance movement</a>.</p> <p>The collection includes a tract by the Reverend Joseph Cook called &ldquo;Alcohol and the Human Brain,&rdquo; another by Alden on &ldquo;Medical uses of alcohol,&rdquo; one by Sabine on &ldquo;Drink &amp; Christian church,&rdquo; and one by Davis on &ldquo;Intemperance and crime,&rdquo; among a number of others.</p> "Morton Horwitz on the public-private distinction (1982)" https://inpropriapersona.com/articles/morton-horwitz-on-the-public-private-distinction-1982/ Fri, 04 May 2018 00:00:00 +0000 c9c8df4d3781551df755e44e35e6fa33 <p>In his 1982 law-review article, &ldquo;<a href="https://scholarship.law.upenn.edu/penn_law_review/vol130/iss6/6">The History of the Public/Private Distinction</a>,&rdquo; legal historian Morton Horwitz wrote, &ldquo;The distinction between public and private realms arose out of a double movement in modern political and legal thought.&rdquo;<sup class="footnote-ref" id="fnref:horwitz"><a href="#fn:horwitz">1</a></sup></p> <p>He concluded that in the late twentieth century, the distinction was breaking down as &ldquo;private institutions were acquiring coercive power that had formerly been reserved to governments.&rdquo;</p> <h3 id="the-public-realm">The Public Realm</h3> <p>First, in the sixteenth and seventeenth centuries, according to Horwitz, new ideas about &ldquo;a distinctly public realm began to crystallize&rdquo; as theories of soverignty appeared alongside the &ldquo;emergence of the nation-state.&rdquo;<sup class="footnote-ref" id="fnref:horwitz1423"><a href="#fn:horwitz1423">2</a></sup></p> <p>Horwitz points to, among other indications, legal doctrines of the late medieval period that distinguished between the monarch&rsquo;s feudal lands, which were to be treated as private property and could be sold or transfered like any other property. But a new vision of &ldquo;crown lands&rdquo; (&ldquo;in essence, public lands&rdquo;) emerged in English law. This land, while still controlled by the monarch, could not be fully transfered to anyone else (i.e., &ldquo;he could not alienate&rdquo; this land).<sup class="footnote-ref" id="fnref:horwitz1423b"><a href="#fn:horwitz1423b">3</a></sup></p> <h3 id="the-private-sphere">The Private Sphere</h3> <p>Second, beginning especially in the seventeenth century, new theories of rights developed to limit state power in reaction to the claims of the monarch and the English parliament to unrestrainedly make law. These &ldquo;natural rights&rdquo; theories &ldquo;stake[d] out distinctively private spheres free from the encroaching power of the state.&rdquo;<sup class="footnote-ref" id="fnref:horwitz1423c"><a href="#fn:horwitz1423c">4</a></sup></p> <p>Horwitz describes the early origins of the &ldquo;private sphere&rdquo; as appearing in the theories &ldquo;of <a href="https://inpropriapersona.com/articles/locke-where-there-is-no-law-there-is-no-freedom/">Locke</a> and his successors,&rdquo; but argues that &ldquo;only in the nineteenth century was the public/private distinction brought to the center of the stage in American legal and political theory.&rdquo; It was, he says, the <em>market</em> that provided &ldquo;a central legitimating institution,&rdquo; especially when it came to the &ldquo;distinction between public law and private law.&rdquo;<sup class="footnote-ref" id="fnref:horwitz1424"><a href="#fn:horwitz1424">5</a></sup></p> <aside>According to Horwitz, <strong>public law</strong> is <i>constitutional, criminal, and regulatory law,</i> while <strong>private law</strong> covers <i>torts, contracts, property, and commercial law.</i></aside> <h3 id="effects-of-the-public-private-distinction">Effects of the public/private distinction</h3> <p>The public/private distinction had two particularly key effects that would be felt well into the future:</p> <p>First, <strong>corporations</strong> were increasingly freed from &ldquo;regulatory public law premises&rdquo; (i.e., essentially that they had some level of duty and obligation to work on behalf of the body politic and were bound in some sense to those goals) that had limited them previously (note that prior to the nineteenth century, corporations were created by specific governmental acts for specific purposes, rather than by purely private actors as a means of business organization).<sup class="footnote-ref" id="fnref:horwitz1425"><a href="#fn:horwitz1425">6</a></sup></p> <p>Second, <strong>contracts</strong> became increasingly understood as purely private matters between &ldquo;consenting individuals in which the state should have no interest.&rdquo; This limited doctrines in equity that protected against, for example, unfair contracts based on unequal bargaining positions, etc.<sup class="footnote-ref" id="fnref:horwitz1425b"><a href="#fn:horwitz1425b">7</a></sup> This laid the groundwork for the emergence of &ldquo;<a href="https://inpropriapersona.com/articles/the-irony-of-liberty-of-contract-normalizing-federal-intervention/">liberty of contract</a>,&rdquo; as in the (in)famous <a href="https://www.courtlistener.com/opinion/96276/lochner-v-new-york/"><em>Lochner v. New York</em></a> decision from 1905.</p> <h3 id="justifications-for-the-distinction">Justifications for the distinction</h3> <p>A key goal of more &ldquo;orthodox&rdquo; nineteenth-century jurists was &ldquo;to create a legal science that would sharply separate law from politics&rdquo;:</p> <blockquote> <p>By creating a neutral and apolitical system of legal doctrine and legal reasoning free from what was thought to be the dangerous and unstable redistributive tendencies of democratic politics, legal thinkers hoped to temper the problem of &ldquo;tyranny of the majority.&rdquo;</p> </blockquote> <p>The private successes that came to some through &ldquo;free market&rdquo;—idealized as distributing such rewards &ldquo;on a supposedly neutral and apolitical basis&rdquo;—needed to be protected against &ldquo;public intrusion.&rdquo;<sup class="footnote-ref" id="fnref:horwitz142526"><a href="#fn:horwitz142526">8</a></sup></p> <p>To put it differently, the growing gap between the wealthy and the poor during the Gilded Age, which was generating attackes from Populists, Progressives, workers, farmers, and the rest of the &ldquo;majority,&rdquo; required <em>new</em> legal doctrines to protect and preserve it. Otherwise, the <a href="https://inpropriapersona.com/notes/2018/03/the-adulteration-of-intelligence-1883/">majority might well rise up</a> and redistribute the wealth more fairly and equally.</p> <h3 id="but-is-private-power-really-different-from-public-power">But is private <em>power</em> really different from <em>public</em> power?</h3> <p>After the 1905 decision in <a href="https://www.courtlistener.com/opinion/96276/lochner-v-new-york/"><em>Lochner</em></a>, numerous jurists sought to undermine the public/private distinction that supported the constitutionalization of &ldquo;liberty of contract.&rdquo; In particular, many legal thinkers attacked the very characterization of the &ldquo;invisible hand&rdquo; behind free-market theories, ridiculing its supposedly &ldquo;neutral and apolitical&rdquo; nature:</p> <blockquote> <p>All law was coercive and had distributive consequences, they argued. It must therefore be understood as a delegation of coercive public power to individuals, and could only be justified by public policies.<sup class="footnote-ref" id="fnref:horwitz1426"><a href="#fn:horwitz1426">9</a></sup></p> </blockquote> <p>By the 1980s (with &ldquo;<a href="https://en.wikipedia.org/wiki/Reagan_Era">Reaganism</a>&rdquo; ascendant), when Horwitz was writing, he argued that the twentieth century back-and-forth about the nature of public and private interest and the role of the state had culminated in a revival of a kind of individualism that did not believe that the public realm stood above self interest—and had led to &ldquo;a relapse into a predatory and vicious conception of politics.&rdquo;<sup class="footnote-ref" id="fnref:horwitz142728"><a href="#fn:horwitz142728">10</a></sup></p> <p>Horwitz finished by saying that &ldquo;reality has a funny way of intruding.&rdquo; As in the Gilded Age, when <a href="https://inpropriapersona.com/articles/the-telegraph-and-business-invasions-of-privacy/">worries about over-powerful corporations</a> were growing into public demands for action, the distinction between private and public power had grown blurry by the late twentieth century:</p> <blockquote> <p>The attack on the public/private distinction was the result of a widespread perception that so-called private institutions were acquiring coercive power that had formerly been reserved to governments.<sup class="footnote-ref" id="fnref:horwitz1428"><a href="#fn:horwitz1428">11</a></sup></p> </blockquote> <div class="footnotes"> <hr /> <ol> <li id="fn:horwitz">Morton J. Horwitz, &ldquo;The History of the Public/Private Distinction,&rdquo; <em>University of Pennsylvania Law Review</em> 130, no. 6 (June 1, 1982): 1423–28. Available at: <a href="https://scholarship.law.upenn.edu/penn_law_review/vol130/iss6/6">https://scholarship.law.upenn.edu/penn_law_review/vol130/iss6/6</a> <a class="footnote-return" href="#fnref:horwitz">⇡</a></li> <li id="fn:horwitz1423">Ibid. at 1423. <a class="footnote-return" href="#fnref:horwitz1423">⇡</a></li> <li id="fn:horwitz1423b">Ibid. <a class="footnote-return" href="#fnref:horwitz1423b">⇡</a></li> <li id="fn:horwitz1423c">Ibid. <a class="footnote-return" href="#fnref:horwitz1423c">⇡</a></li> <li id="fn:horwitz1424">Ibid. at 1424. <a class="footnote-return" href="#fnref:horwitz1424">⇡</a></li> <li id="fn:horwitz1425">Ibid. at 1425. <a class="footnote-return" href="#fnref:horwitz1425">⇡</a></li> <li id="fn:horwitz1425b">Ibid. <a class="footnote-return" href="#fnref:horwitz1425b">⇡</a></li> <li id="fn:horwitz142526">Ibid. at 1425-1426. <a class="footnote-return" href="#fnref:horwitz142526">⇡</a></li> <li id="fn:horwitz1426">Ibid. at 1426. <a class="footnote-return" href="#fnref:horwitz1426">⇡</a></li> <li id="fn:horwitz142728">Ibid. at 1427-1428. <a class="footnote-return" href="#fnref:horwitz142728">⇡</a></li> <li id="fn:horwitz1428">Ibid. at 1428. <a class="footnote-return" href="#fnref:horwitz1428">⇡</a></li> </ol> </div> Research note: The Radical Remedy in Social Science (1887): Eugenics https://inpropriapersona.com/notes/2018/04/the-radical-remedy-in-social-science-1887-eugenics/ Tue, 24 Apr 2018 00:00:00 +0000 4ef43fde024200959799194d2364d79c <p>From Edward Bond Foote, <em>The Radical Remedy in Social Science; Or, Borning Better Babies Through Regulating Reproduction by Controlling Conception: An Earnest Essay on Pressing Problems</em> (Murray Hill Publishing Company, 1887), 15:</p> <blockquote> <p>We want:—</p> <p>A sufficient education in the science of private and public hygiene and morals, and especially in the direction of sex, reproduction and heredity, which shall be so general that every man and woman at the age of puberty shall know enough, and be religiously inclined to guard against crippling himself or herself, the family or society, by indulging in vice of any kind, and particularly that of reckless propagation.</p> </blockquote> Research note: The form of letters forces relationships https://inpropriapersona.com/notes/2018/04/the-form-of-letters-forces-relationships/ Sun, 22 Apr 2018 00:00:00 +0000 b0ac73cc891918fe03a75f7a1a27a537 <p>&ldquo;Because letters make their address to audience explicit,&rdquo; writes Elizabeth Hewitt, &ldquo;they emphasize reciprocity:&rdquo;</p> <blockquote> <p>indeed, the letter&rsquo;s address works to make reciprocity all but ineluctable. For example, the conventional superscription to a letter that qualifies the reader as &ldquo;dear&rdquo; asserts an intimacy between reader and writer that the reader is goven almost no space to resist.<sup class="footnote-ref" id="fnref:Hewitt6"><a href="#fn:Hewitt6">1</a></sup></p> </blockquote> <p>David M. Stewart adds to Hewitt&rsquo;s point:</p> <blockquote> <p>The same is true for the debt incurred by receiving a letter, which had to be answered or risk injuring the sender. Character aside, salutatory endearments and the debts incurred by receiving letters projected family authority directly beyond the home.<sup class="footnote-ref" id="fnref:Stewart186-87"><a href="#fn:Stewart186-87">2</a></sup></p> </blockquote> <div class="footnotes"> <hr /> <ol> <li id="fn:Hewitt6">Elizabeth Hewitt, <a href="https://books.google.com/books?id=fsp7jECp2bAC"><em>Correspondence and American Literature, 1770–1865</em></a> (2004), 6. <a class="footnote-return" href="#fnref:Hewitt6">⇡</a></li> <li id="fn:Stewart186-87">David M. Stewart, &ldquo;<a href="http://www.jstor.org/stable/10.3366/j.ctt1bh2kh4.15">Working Away, Writing Home</a>,&rdquo; in <a href="http://www.worldcat.org/title/the-edinburgh-companion-to-nineteenth-century-american-letters-and-letter-writing/oclc/6887111313"><em>The Edinburgh Companion to Nineteenth-Century American Letters and Letter-Writing</em></a> (2016), 186-87. <a class="footnote-return" href="#fnref:Stewart186-87">⇡</a></li> </ol> </div> Research note: Henry Hitchcock considers privacy and telegrams (1879) https://inpropriapersona.com/notes/2018/04/henry-hitchcock-considers-privacy-and-telegrams-1879/ Sun, 08 Apr 2018 00:00:00 +0000 277e447b513b455102da3caee06d3101 <p>In the aftermath of Congress&rsquo; investigations into the disputed Hayes-Tilden election in 1876 (and the use of Congress&rsquo; legislative subpoena power&mdash;which generally operated in a similar manner to that of the judiciary&rsquo;s version&mdash;to go after potentially relevant telegrams held by Western Union), the question of telegraphic privacy captured the attention of journalists and jurists.</p> <p>In 1879, <a href="https://en.wikipedia.org/wiki/Henry_Hitchcock_(Missouri_lawyer)">Henry Hitchcock</a>, a lawyer St. Louis who helped found the American Bar Association and sometimes represented Western Union in court, published an article, <a href="https://books.google.com/books?id=Ex8PAAAAYAAJ&amp;pg=PA93">The Inviolability of Telegrams</a>, in the Southern Law Review analyzing the existing case law around the issue and the arguments for and against.</p> <p>He looked at five cases from 1851 to 1879 (the decision in this last one, <em>ex parte Brown,</em> would be overturned after his article was published) that dealt with the &ldquo;compulsory production of telegrams in evidence.&rdquo; He also mentions examples of legislative subpoenas being used as well.</p> Research note: “The Adulteration of Intelligence” (1883) https://inpropriapersona.com/notes/2018/03/the-adulteration-of-intelligence-1883/ Mon, 26 Mar 2018 00:00:00 +0000 d4ff84d8b3691232622f703a89cefd4a <p>In 1883, journalist <a href="https://web.archive.org/web/20150709152946/https://pfaffs.web.lehigh.edu/node/54215">Charles T. Congdon</a> wrote an article, &ldquo;<a href="https://babel.hathitrust.org/cgi/pt?id=hvd.32044092623594;view=1up;seq=98">The Adulteration of Intelligence</a>,&rdquo; warning about power of the press if misused.</p> <p>He noted, as example, the challenge presented by Jay Gould&rsquo;s ownership interest in the monopoly (or near monopoly) of Western Union, especially when ownership of the telegraph system was unified with ownership of &ldquo;wire services&rdquo; (like the Associated Press). Gould and his associates were in a position to set rates, &ldquo;to suppress intelligence&rdquo; (meaning information), &ldquo;and generally to use the cable, not for the public benefit, but for their own private emolument&rdquo;:</p> <blockquote> <p>The simultaneous control of the telegraph, of long lines of railway, and of leading newspapers, by a few men acting in a corporate capacity, or by one man employing the advantages of a corporation, puts the whole public, so far as intelligence is concerned, at the mercy of unlimited power.</p> </blockquote> <p>Through control of telegraphs and newspapers, &ldquo;[h]e adds to the advantages of an absolutely unlimited capital something like prescience, if not omniscience.&rdquo;</p> <p>But the disparity created men like Gould when they consolidate their power through vast wealth and then dominate politics and life inevitably &ldquo;leaves the great majority under the weight of comparative poverty.&rdquo; This, in turn, creates a dangerous risk to society as a whole as the &ldquo;poor man&rdquo; asks angry and inconvenient questions&mdash;and, then in the face of this inequality and apparant powerlessness, turns to &ldquo;riot,&rdquo; &ldquo;strikes,&rdquo; and the publication of their own &ldquo;brood of irresponsible sheets.&rdquo;</p> <blockquote> <p>We are going on madly in many things, but in nothing are we madder than in fancying that the giant democracy, which thus far has been kept under tolerable restraint, can always be made to believe what capitalists and the editorial agents of capitalists wish them to believe. The adulteration of intelligence may work in a quite unlooked-for way; the misstatement of social prob lems may end in explosions painful to apprehend; and a people left in ignorance may prove quite beyond the management even of the wisdom which, for a considerable portion of the year, irradiates the city of Washington.</p> </blockquote> Research note: Attacks on government related to the telegraph in the nineteenth century https://inpropriapersona.com/notes/2018/03/attacks-on-government-related-to-the-telegraph-in-the-nineteenth-century/ Tue, 20 Mar 2018 00:00:00 +0000 b4bfbe229a73d40b5c7e28195e37d162 <p>Richard B. Du Boff <a href="https://doi.org/10.1111/j.1460-2466.1984.tb02173.x">writes</a>, in relation to the telegraph in the mid-nineteenth century:</p> <blockquote> <p>Even though opposition to &ldquo;government&rdquo; was on the rise and unceasing attacks on alleged government waste and ineptitude were beginning to erode the democratic process, the dependence of the telegraph industry on public sector aid was undeniable.</p> </blockquote> <p>His brief article on &ldquo;The Rise of Communications Regulation&rdquo; covers a wide variety of business-related points, but I found this sentence particularly resonant in 2018.</p> Research note: What Place for Family Privacy? (1999) https://inpropriapersona.com/notes/2018/03/what-place-for-family-privacy-1999/ Tue, 13 Mar 2018 00:00:00 +0000 125a1558ec37a17a9b5c1bbb9965f25d <p>In a 1999 article, &ldquo;<a href="http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/gwlr67&amp;section=60">What Place for Family Privacy</a>,&rdquo; <a href="http://law.emory.edu/faculty-and-scholarship/faculty-profiles/fineman-profile.html">Martha Albertson Fineman</a> examines the unique nature of American legal rules applicable to the family&mdash;and its designation as &ldquo;the quintessential &lsquo;private&rsquo; institution.&rdquo;</p> <blockquote> <p>[Family law] assumes and reflects a certain type of relationship between family and state. During the nineteenth century this relationship was typically cast as one of &ldquo;separate spheres.&rdquo; Family (the private sphere) and State (the public sphere) were perceived as largely independent of one another. The metaphor of separation captured an ethic or ideology of family privacy in which state intervention was the exception.</p> <p>The characterization of the family as distinct and separate from the state still resonates in our rhetoric about families. The family is designated the quintessential &ldquo;private&rdquo; institution. Family is distinguished from both the market (a chameleon institution, public vis-h-vis the family but &ldquo;private&rdquo; vis-à-vis the state) and the state (the quintessential public institution) by its privateness. For the modem private family, protection from public interference remains the publicly stated norm&mdash;state intervention continues to be cast as exceptional, requiring some justification.</p> </blockquote> <p>In seeking to rethink the (mutually interactive) relationship between family (as a dynamic and not a natural concept) and the state, she touches on a key American aspiration: &gt;Our current (and historic) stated national ideology glorifies self-sufficiency and independence, both for the individual and for the family.</p> <p>After considering how this ideology hides &ldquo;dependency&rdquo; within the family&mdash;and how revealing it can lead society and law to seek greater control over anything related to it once it is no longer hidden within families&ndash;she moves to consider the concept of privacy and its relationship to current conceptions of family:</p> <blockquote> <p>We perceive a line of privacy drawn around certain intimate units, that distinguishes them as &ldquo;family.&rdquo; The privacy line defines the relationship of individuals within the family entity and mediates their relationship to the state.</p> </blockquote> <p>In reconsidering privacy in light of her conception that &ldquo;family&rdquo; should be defined more along functional lines than traditional forms, leading also to an <a href="https://inpropriapersona.com/articles/privacy-as-secrecy-and-privacy-as-autonomy/">autonomy-focused (rather than secrecy-focused)</a> view of privacy:</p> <blockquote> <p>Thus conceived, privacy would not be a right to separation, secrecy, or seclusion, but the right to autonomy or self-determination for the family even though it is firmly located within a supportive and reciprocal state.</p> </blockquote> <p>She distinguishes her version of privacy as being distinct from more recent moves to conceptualize privacy as an <em>individual</em> constitutional right (after <a href="https://inpropriapersona.com/articles/griswold-v-connecticut-privacy-and-the-home/">Griswold</a>, but especially after <a href="https://www.courtlistener.com/opinion/108489/eisenstadt-v-baird/">Eisenstadt</a>). This is in line with more &ldquo;traditional&rdquo; formulations of privacy (&ldquo;privacy in its common law sense&rdquo;) as protecting an <em>entity</em> (the family):</p> <blockquote> <p>The idea of the entity of the family as something &ldquo;private&rdquo; predates, and is analytically separate from, the constitutional idea of individual privacy, although this &ldquo;new&rdquo; arena of privacy seems rooted in older notions about family relations.</p> </blockquote> <p>In this more &ldquo;classic&rdquo; formulation of familial or marital privacy, the &ldquo;relevant unit for protection&rdquo; is an entity and not an individual. Furthermore, she writes,</p> <blockquote> <p>family privacy operated as a generalized protection. Not only were specific, weighty intimate decisions, such as the decision to beget or bear a child, shielded from state intervention and control, but mundane day-to-day family interactions were shielded as well.</p> </blockquote> <p>(I should note that this did not mean that all of these &ldquo;intimate&rdquo; decisions were <em>completely</em> shielded from outside control or intervention. See, e.g., <a href="https://inpropriapersona.com/articles/privacy-autonomy-birth-control-america-1860-1900/">Privacy, autonomy, and birth control in America, 1860-1900</a> and <a href="https://inpropriapersona.com/articles/haverty-v-bass/">Haverty v. Bass: protecting the public health in 1876</a>.)</p> <p>A problem with (overprotecting) family privacy is that <a href="https://inpropriapersona.com/articles/privacy-hides-histories-of-abuse/">privacy can keep histories of abuse hidden from public view</a>, as Fineman notes:</p> <blockquote> <p>the idea of family privacy has been severely criticized by feminists, children&rsquo;s rights proponents, and others concerned with the potential for physical, emotional, or psychological abuse of some family members by others. Family privacy has been charged with obscuring and fostering inequality and exploitation.</p> </blockquote> <p>Of concern for her, too, is that family privacy has historically &ldquo;applie[d] primarily to family units that conform to ideological conventions about appropriate form and function&mdash;intact nuclear families.&rdquo; Single mothers and other so-called &ldquo;non-traditional&rdquo; family units have been excluded from its protections.</p> <p>To resolve these issues—to gain the proctions privacy offers while reducing its dangers—Fineman suggests &ldquo;that we can and should rethink privacy in such a way as to confer autonomy on caretaking or dependency units&rdquo; rather than on the form of the &ldquo;traditional&rdquo; nuclear family. It would also, she argues, need to be &ldquo;anchored firmly within society, subsidized, and supported by market and state, but retaining authority within its parameters.&rdquo;</p> <p>She goes on to discuss how to deal with problems feminist scholars have had with familial privacy and hiding or encouraging the exploitation and abuse of women and children, but argues that a reconfiguration of privacy along functional lines—and integration with society in certain aspects—would help overcome this.</p> <blockquote> <p>A concept of individual privacy, particularly in regard to the formation of intimate connections can complement family pri- vacy, but some protection that transcends the interests of individual members of the entity is essential. When a caretaking-dependent unit has formed, family privacy would serve to shield and protect the functioning relationships within it. The protection would dissolve only if the entity grossly fails in the performance of its responsibilities or if the underlying relationship is itself dissolved.</p> </blockquote> <p>In concluding her reimagined version of privacy, she argues:</p> <blockquote> <p>Properly conceived, privacy as a principle of self government allows the caretaker-dependent unit to flourish, supported and subsidized by the larger society without the imposition of conformity.</p> </blockquote> <p>She also notes that this is an ongoing process, not a static one, and that it requires thinking about resources society ought to provide to families as well as &ldquo;how porous the family will be and how much autonomy it should be ceded.&rdquo;</p> Research note: Privacy for Whom? https://inpropriapersona.com/notes/2018/02/privacy-for-whom/ Mon, 26 Feb 2018 00:00:00 +0000 a03eb49f8e94e1913f49658e9af162ca <p><a href="https://thenewinquiry.com/author/sam-adler-bell/">Sam Adler-Bell</a> writes for <strong>The New Inquiry</strong>: &gt; For Snowden, privacy is the “fountainhead” of all rights. Without a “quiet space, a space within yourself” beyond the reach of the state, free and democratic engagement is impossible. &gt; There is utility in this discourse. It broadens the potential constituency for reform. But it also obscures the topography of power, eliding the sorts of privacy invasions that are regularly experienced by the poor, the brown, the marginal. For the underclasses, privacy—in the form of access to ungovernable spaces—has never been on offer.</p> <p>The two books he discusses are: * Virginia Eubanks, <strong>Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor.</strong> St. Martin&rsquo;s Press, 2017. 265 pages. <a href="https://books.google.com/books?id=pn4pDwAAQBAJ">Via Google Books</a> * Khiara M. Bridges, <strong>The Poverty of Privacy Rights.</strong> Stanford University Press, 2017. 296 pages. <a href="https://books.google.com/books?id=yUUkDwAAQBAJ">Via Google Books</a></p> <p>Another related book he mentions is: * Jen Manion, <strong>Liberty&rsquo;s Prisoners: Carceral Culture in Early America.</strong> University of Pennsylvania Press, 2015. 296 pages. <a href="https://books.google.com/books?id=OON0CgAAQBAJ">Via Google Books</a></p> Teaching note: Week 5 of my first online course https://inpropriapersona.com/notes/2018/02/week-5-of-my-first-online-course/ Sun, 25 Feb 2018 00:00:00 +0000 30bd11245a6ac8d8bfea726fbba3c216 <p>As I <a href="https://inpropriapersona.com/notes/2018/01/teaching-my-first-online-course/">noted previously</a>, I was first involved in online instruction in the last millennium&mdash;and have always been a skeptic. This semester, however, was the first time I taught my own online course from my own syllabus&hellip; and I was worried.</p> <p>For good reason, it seems.</p> <p>The course is, in content, just fine. I&rsquo;m using a good textbook, sprinkled with video lectures to focus on some key points, and with reasonable discussion and essay questions. The online students seem pretty much exactly like my in-person students.</p> <p>But compared to my in-person classes, it&rsquo;s (relatively) boring, disconnected, and unengaging. I enjoy it about as much as I&rsquo;ve enjoyed the online classes I&rsquo;ve taken as a student, which is to say, it&rsquo;s utilitarian and functional rather than inspiring and illuminating.</p> <p>The technology is OK (though clunky and failure prone). Everything is OK. But that&rsquo;s it. Just OK.</p> <p>And I&rsquo;m buried under even more email and electronic paperwork and routine than usual because of it. Just what I need!</p> <p>If my goal were to drill facts into self-motivated students, this would be enough. But that isn&rsquo;t my goal for a history class. My goal is to teach people to think, to make connections, to be better citizens, and to view history as exciting, productive, and engaging.</p> <p>I come away from in-person lectures and student interactions with more energy (even though it&rsquo;s exhausting.) Meanwhile, my online experience is dull, drab, and draining&hellip; and pretty much matches <em>exactly what my students complain about when they say they&rsquo;ve disliked past history classes.</em> My in-person meta goal is always to transform that prejudice, but online history reinforces it. <em>Le sigh.</em></p> <p>Still, I&rsquo;ll keep plugging away at it. There ought to be a way to make it work.</p> Teaching note: Teaching my first online course https://inpropriapersona.com/notes/2018/01/teaching-my-first-online-course/ Wed, 31 Jan 2018 00:00:00 +0000 be2a1b2221cf8a4802021b76d5ef5712 <p>Although I&rsquo;ve been involved in online instruction since the <em>first</em> dot-com bubble burst back in the day, I&rsquo;ve always been a skeptic: how could online instruction possibly replace the interactivity of live in-person teaching?</p> <p>I&rsquo;m deploying various tools to try to replicate some of the back-and-forth, spontenaity, and challenge: live video streams with chat (that I will do at a variety of times to accommodate various schedules), recorded videos, discussion rooms with directed questions, online quizzes, essays&hellip;</p> <p>But nonetheless this is the first time I&rsquo;ve done my own course completely online. We shall see how it goes!</p> Research note: Postoperative Salt Intolerance (1944) https://inpropriapersona.com/notes/2018/01/postoperative-salt-intolerance-1944/ Thu, 18 Jan 2018 01:00:20 +0000 5f6d12625d44e484676422260df8be76 <p>In 1944, several doctors <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1617937/?page=1">published a series of case studies</a> about the use of postoperative saline and various outcomes for patients.</p> <p>In it, they reference earlier work from around 1913 in which &ldquo;Trout and Evans&rdquo; experimented on patients more systematically&mdash;and in which they suggest (without explicitly saying so or even seemingly noticing) that the experiments were carried out without the informed consent or even the knowledge of the patients involved.</p> <p>What does this say about changing ideas of consent and medical experimentation?</p> <p>(See also Cathy Gere&rsquo;s book, <a href="https://books.google.com/books?id=A74zDwAAQBAJ">Pain, Pleasure, and the Greater Good: From the Panopticon to the Skinner Box and Beyond</a>, from 2017.)</p> Research note: The Duty of Confidence Revisited by Nyuk Yin Nahan https://inpropriapersona.com/notes/2018/01/the-duty-of-confidence-revisited-by-nyuk-yin-nahan/ Wed, 17 Jan 2018 16:00:00 -0800 4804eb1628f1148138b79bc0ae803ea1 <p>Australian privacy law draws more on English precedent (focusing on confidential relationships) than American privacy law does (which turned Warren and Brandeis&rsquo; &ldquo;Right to Privacy&rdquo; into a series of torts, then added a related vision of autonomy, and mixed it all with a dose of anti-government paranoa).</p> <h3 id="what-is-the-law-of-confidence">What is the &ldquo;law of confidence&rdquo;?</h3> <p>Nyuk Yin Nahan&rsquo;s article, <a href="http://www.law.uwa.edu.au/__data/assets/pdf_file/0010/2795581/Nyuk-Yin-Nahan-The-Duty-of-Confidence-Revisited.pdf">The Duty of Confidence Revisited: The protection of confidential information</a> (2015), summarizes the &ldquo;classic&rdquo; version:</p> <blockquote> <p>The classic duty of confidence, according to <em>Coco v AN Clark (Engineers) Ltd</em> arises in circumstances where a person entrusts confidential information to a confidant, typically, for his knowledge or for some limited use. We say routinely that there are three requirements for the cause of action (i) the information must have the necessary quality of confidence, (ii) the information must be imparted in circumstances importing a duty of confidence, and (iii) there must be actual or threatened breach. The duty of confidence is ext ended to a person who obtains confidential information surreptitiously or improperly. In England, it is settled that there is a duty on even one who chances upon another’s confidential information accidentally. In Australia, the accidental &lsquo;confidant&rsquo; is arguably under a similar duty.</p> </blockquote> <h3 id="third-parties">Third Parties</h3> <p>One key distinction with American jurisprudence &mdash; which sees any revelation of information to a third party as leading to a full loss of any privacy claim (see <em>Katz v. United States</em> and <em>Smith v. Maryland</em>)&mdash;is that in Anglo-Australian law, <em>includes third parties</em>.</p> <p>That is, privacy is not lost just because information is shared, willingly or not, with another person.</p> "Welcome to Hugo" https://inpropriapersona.com/news/2018/welcome-to-hugo/ Sun, 14 Jan 2018 00:00:00 +0000 49891b9ad466a5e8e6bd8febfd656c35 <p>For the first several years, <em>in propria persona</em> ran on Blogger. After I tired of the limits of that platform, I moved it to the hugely configurable and widely used WordPress platform, usually hosting it myself with various small VPS providers.</p> <p>I still like WordPress (and use it professionally), but the complexity of managing it and making it fast, secure, and highly customized finally made me rethink the entire thing.</p> <p>So, after building my personal site using Jekyll, I decided finally to move all of my several hundred posts off of WordPress (using a custom-written Python script to access the very nice WP REST API).</p> <p>And although I still quite like Jekyll and the flexibility of Ruby, I decided on Hugo&mdash;mostly because Go is <em>fast</em>, but also because I liked its rather agnostic view of sections and structure&mdash;and even though I find its template language (which draws on Go underneath)&hellip; odd.</p> <p>I then decided to host it with Netlify and Github, put Gulp and NPM at the front end (so I can use SASS, minify, etc.), and tied into Algolia&rsquo;s hosted search system (plus a bit of Heroku and old-fashioned PHP to handle my contact form).</p> <p>Everything can be tested locally then pushed into production on Netlify with <code>git push</code>.</p> <p>Tweaks and customization are fun again. Even the limitations of static hosting are more interesting puzzles than frustrating barriers.</p> <p>I recommend it&mdash;though only for developer sorts!</p> "“Women and Pockets” (1885)" https://inpropriapersona.com/articles/women-and-pockets-1885/ Sun, 22 Oct 2017 21:40:08 +0000 70b39f825e1925966c881639f66a0dfa <p>I occasionally come across fun little writings as I go about my own research. Here&#8217;s one from the &#8220;Boston Beacon&#8221; (and republished in the <em>San Francisco Chronicle</em>) in 1885 (via <a href="https://search.proquest.com/docview/572049614">Proquest</a>):</p> <blockquote><p>The straights to which helpless woman has been subjected by the absence of pockets in her gowns have wrung from her many complaints that have availed her nothing. She has begged and pleaded for &#8220;more&#8221; in vain, and then taken to leather or silk hand-bags as a substitute, but now even these articles are denied her by fashion and the dressmaker, and she really knows not what to do for need of a place to keep her handkerchief and her purse. Any lawful possessor of pockets who has watched a woman struggling to get at her fare in a crowded horse car and noted her unavailing clutches at that evasive, abstruse problem where she keeps her purse, must appreciate her pockets ever after.</p></blockquote> <p>What year is it again? And <a href="http://www.bbc.com/news/business-37084813">still no pockets</a>?</p> "The telegraph and the domestic home" https://inpropriapersona.com/articles/the-telegraph-and-the-domestic-home/ Fri, 20 Oct 2017 21:48:50 +0000 90b2a99f62c0fdde890a27fd8a3c044c <p>In considering how the telegraph and privacy law interacted in the nineteenth century, I&#8217;ve developed the theory that the <a href="https://inpropriapersona.com/an-argument-for-the-inviolability-of-telegraphic-correspondence/">failure of telegrams to gain the same constitutional privacy protections</a> granted to mailed letters and, eventually, to telephone calls, is due in part to a failure to connect it to the domestic home (<a href="https://inpropriapersona.com/prohibition-domestic-home/">the strongest source of privacy rights in American law</a>).</p> <p>I still think this theory, in the context of privacy in the United States, has merit. The telegraph was primarily a &#8220;public sphere&#8221; technology, in that its first focus was on business communications and then, secondarily, on a much more limited basis (even if only due to cost), on personal communications by individuals (who even then had to <a href="https://inpropriapersona.com/third-party-problem-one-reason-telegrams-constitutionally-protected/">share the communication with a third party</a> &#8212; the telegraph operator).</p> <p>But I have, interestingly, found an example &#8212; in <a href="https://journalism.wisc.edu/staff/greg-downey/">Greg Downey</a>&#8216;s book <a href="https://books.google.com/books?id=S9VQAwAAQBAJ&amp;pg=PA108">Telegraph Messenger Boys: Labor, Technology, and Geography 1850-1950</a> (2002) &#8212; of a telegraph company marketing its service for the domestic market:</p> <blockquote><p>American District Telegraph Company was originally conceptualized as a business service, but it quickly began to sell itself as a service for the home as well. &#8230; The telegraph companies advertised the social function of telegrams to women very early &#8230; But these were by definition upper-class women with enough income and social obligations to require telegraph services.</p></blockquote> <p>This did not mean the installation of telegraph lines in private residences (unlike telephones), but rather the dispatch of messenger boys who provided various domestic services (a kind of <a href="https://en.wikipedia.org/wiki/TaskRabbit">TaskRabbit</a> of its day), as well as delivering and transporting messages on behalf of the household.</p> <p>I think my argument &#8212; that jurists of the day failed in large part to maximize this connection to domestic life &#8212; still holds, but this is nonetheless a great example of telegraphic innovation (and suggests, perhaps, that today&#8217;s Internet innovators are possibly not as innovate as they might appear at first glance&#8230;).</p> "Locke: “where there is no law, there is no freedom”" https://inpropriapersona.com/articles/locke-where-there-is-no-law-there-is-no-freedom/ Thu, 12 Oct 2017 00:04:15 +0000 b18a2b761b0f23906e94029e34939d38 <p>Eighteenth-century political theorists John Locke is often associated with &#8220;libertarian&#8221; ideals that suggest that almost any exercise of government power is a problem and that almost all government functions (except those dedicated to protecting property and enforcing contracts) ought to be put in private hands.</p> <p>But Locke&#8217;s view was much more nuanced than those of many (but not all) current libertarians. He certainly emphasized the key importance of <em>property</em>, but he situated property as one of three key goals of government: life, liberty, and property. (Note that, interestingly, Thomas Jefferson, in many ways Locke&#8217;s intellectual descendant, transformed this into &#8220;life, liberty, and the pursuit of happiness&#8221; in the <a href="https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence">American Declaration of Independence</a>.)</p> <p>Most importantly, he emphasized the critical importance of <em>law</em>&mdash;overseen, implemented, and managed by government&mdash;in achieving actual freedom and liberty:</p> <blockquote><p> So that, however it may be mistaken, <em>the end of law is</em> not to abolish or restrain, but <em>to preserve and enlarge freedom:</em> for in all the states of created beings capable of laws, <em>where there is no law, there is no freedom:</em> for <em>liberty</em> is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, <em>a liberty for every man to do what he lists:</em> (for who could be free, when every other man’s humour might domineer over him?) but a <em>liberty</em> to dispose and order as he lists, his persons, actions, possessions, and his whole property, which the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own. &mdash; <a href="https://books.google.com/books?id=K5UIAAAAQAAJ">John Locke, <i>Two treatises of government,</i> p. 234</a> (1689). </p></blockquote> <p>Such an emphasis on the importance of the rule of law in maintaining freedom and liberty is, I think, particularly important in a time when traditional norms are under strain, as they are today in the United States in 2017.</p> "Thoughts on Meyer v. Nebraska and its connection to Griswold v. Connecticut" https://inpropriapersona.com/articles/thoughts-on-meyer-v-nebraska-and-its-connection-to-griswold-v-connecticut/ Thu, 31 Aug 2017 17:30:30 +0000 9ef23a4006ab426b85a35aee2586d09c <p>In the 1923 case of <em><a href="https://www.courtlistener.com/opinion/100233/meyer-v-nebraska/">Meyer v. Nebraska</a></em>, 262 U.S. 390 (1923), which grew out of the anti-German sentiment of World War I, the Supreme Court &#8220;upheld the right of parents to direct the upbringing and education of their children by striking down &#8230; a state statute prohibiting the teaching of any modern language other than English in any public or private grammar school.&#8221;<sup id="fnref-7921-1"><a href="#fn-7921-1" class="jetpack-footnote">1</a></sup></p> <p>How does this relate to <em><a href="https://www.courtlistener.com/opinion/107082/griswold-v-connecticut/">Griswold v. Connecticut</a></em>, 381 U.S. 479 (1965), which created a &#8220;right to privacy&#8221; (<a href="https://www.oyez.org/cases/1964/496">at least in terms of marital relations</a>)?</p> <h4>Unenumerated Rights</h4> <p>First, <em>Meyer</em> expressly listed various specific liberties, most unenumerated, protected under the doctrine of &#8220;substantive due process&#8221; protected by the <a href="https://www.law.cornell.edu/constitution/fifth_amendment">5th</a> and <a href="https://www.law.cornell.edu/constitution/amendmentxiv">14th</a> Amendments&#8217; guarantees of &#8220;liberty&#8221; recognized by the Court when it decided the case in 1923:</p> <blockquote><p> Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, <em>to marry,</em> <em>establish a home and bring up children,</em> to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. <em>Meyer</em> at 399 (emphasis added). </p></blockquote> <p>Although the &#8220;right of the individual to contract&#8221; would be overturned later, the other liberties continued to have both precedential and societal value in 1965, when the concurring opinion in <em>Griswold</em> cited from this list as precedent for the protection of &#8220;marital privacy.&#8221; <em>Griswold</em> at 486-88.</p> <h4>Available Knowledge</h4> <p>Second, Justice Douglas in his majority opinion, cites to <em>Meyer</em> and the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a> for the additional proposition that the state may not &#8220;contract the spectrum of available knowledge.&#8221; <em>Griswold</em> at 482; <em>Meyer</em> at 401. This is obviously relevant to the law at issue in <em>Griswold</em> against providing information on contraception.</p> <h4>Police Power &amp; Scrutiny</h4> <p>Third, although less used after the middle of the twentieth century than the more details <a href="http://blogs.findlaw.com/law_and_life/2014/01/challenging-laws-3-levels-of-scrutiny-explained.html">levels of scrutiny</a> tests, key to the <em>Meyer</em> decision was, as in <em><a href="https://www.courtlistener.com/opinion/96230/jacobson-v-massachusetts/">Jacobson v. Massachusetts</a></em>, we the proper application of the state&#8217;s &#8220;police power&#8221;:</p> <blockquote><p> The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes the proper exercise of police power is not final or conclusive but is subject to supervision by the courts. <em>Meyer</em> at 399-400; <a href="https://www.courtlistener.com/opinion/93817/lawton-v-steele/">Lawton v. Steele</a>, 152 U.S. 133, 137 (1894). </p></blockquote> <p>In <em>Griswold</em>, Justice Douglas articulates a similar limitation on the actions by a state &#8212; and also, implicitly, connects access to contraception to civil rights law:</p> <blockquote><p> [A] law cannot stand in light of the familiar principle, so often applied by this Court that a &#8220;governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.&#8221; <a href="https://www.courtlistener.com/opinion/106832/naacp-v-alabama-ex-rel-flowers/">NAACP v. Alabama</a>, 377 U.S. 288 (1964) </p></blockquote> <h4>The Home and Fundamental Rights</h4> <p>Douglas, drawing inspiration from the deep-seated connection in American law and society between the home and privacy, adds a rhetorical flourish to make his point:</p> <blockquote><p> Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. <em>Gridwold</em> at 485-86. </p></blockquote> <p><em>Meyer</em>, then, although grounded in the time of <em><a href="https://www.courtlistener.com/opinion/96276/lochner-v-new-york/">Lochner v. New York</a></em>, 198 U.S. 45 (1905), and the now-discredited notion of &#8220;liberty of contract,&#8221; and concerned as much with education, access to knowledge, and the rights of teachers as it is with anything like family rights, provides a useful source for both Douglas and other justices in establishing the &#8220;right to privacy&#8221; as a kind of &#8220;fundamental right.&#8221;</p> <div class="footnotes"> <hr /> <ol> <li id="fn-7921-1"> Mark Tushnet, Mark A. Graber, and Sanford Levinson, <a href="https://books.google.com/books?id=s7wDCgAAQBAJ">The Oxford Handbook of the U.S. Constitution</a> (Oxford University Press, 2015), 484.&#160;<a href="#fnref-7921-1">&#8617;</a> </li> </ol> </div> "Griswold v. Connecticut, privacy, and the home" https://inpropriapersona.com/articles/griswold-v-connecticut-privacy-and-the-home/ Wed, 30 Aug 2017 17:30:35 +0000 5bf33767fcfb4b490d9fb7cdc0e8eacd <p><em><a href="https://www.courtlistener.com/opinion/107082/griswold-v-connecticut/">Griswold v. Connecticut</a></em>, 381 U.S. 479 (1965), is one of the foundational cases of a constitutional &#8220;right to privacy&#8221; in the United States &#8212; though, as many have pointed out, the word &#8220;privacy&#8221; <a href="https://books.google.com/books?id=oOtVjsdUPP0C&amp;pg=PA82">does not appear in the text of the Constitution itself</a>. The precedent in the majority opinion by Justice Douglas is nonetheless strong and deeply rooted in tradition.</p> <h4>Two Kinds of Privacy</h4> <p>The line of &#8220;privacy&#8221; cases <em>Griswold</em> relies on is traceable back to, among other sources, Warren and Brandeis&#8217; 1890 law-review article, &#8220;<a href="https://inpropriapersona.com/the-right-to-privacy-by-warren-and-brandeis/">The Right to Privacy</a>.&#8221; Unlike that argument, which concerned the right of individuals to be free from invasive newspaper photographers (a kind of &#8220;informational privacy&#8221;), <em>Griswold</em> emphasizes &#8220;<a href="https://inpropriapersona.com/privacy-as-secrecy-and-privacy-as-autonomy/">privacy-as-autonomy</a>&#8221; &#8212; that is, the freedom and liberty of an individual to make decisions for themselves and thus limiting the exercise of governmental power (in the case of the State of Connecticut, their general &#8220;<a href="https://inpropriapersona.com/women-public-health-police-power/">police power</a>&#8221; to protect &#8220;<a href="https://www.courtlistener.com/opinion/93817/lawton-v-steele/">public safety, health, and morals</a>&#8220;).</p> <aside> No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.<br /> <strong>&#8212; Fourteenth Amendment, Section 1</strong><br /> </aside> <h4>The <em>Lochner</em> Problem</h4> <p>Justice Douglas, in his majority opinion, took pains to distinguish <em>Griswold</em> from the discredited decision of <em><a href="https://www.courtlistener.com/opinion/96276/lochner-v-new-york/">Lochner v. United States</a></em>, 198 U.S. 45 (1905), which found an unenumerated right (&#8220;liberty of contract&#8221;) in the Constitution and <a href="https://inpropriapersona.com/the-irony-of-liberty-of-contract-normalizing-federal-intervention/">applied it to the states</a> via the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">Fourteenth Amendment</a>. Douglas argued that the Court in <em>Griswold</em> was not doing what the Court did in <em>Lochner</em>:</p> <blockquote><p> We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician&#8217;s role in one aspect of that relation. <em>Griswold</em> at 482. </p></blockquote> <aside> Of note is Douglas&#8217; rhetorical connection, via marriage and the family, to that key fount of American privacy: <a href="https://inpropriapersona.com/prohibition-domestic-home/">the domestic home</a>.<br /> </aside> <h4>&#8220;Penumbras&#8221; and Enumerated Rights</h4> <p>To further bolster his position, Douglas connects his argument to explicit rights enumerated in the Constitution, such as the <a href="https://www.law.cornell.edu/wex/first_amendment">First Amendment</a> and prior cases that defined its scope:</p> <blockquote><p> The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach. &#8230; Without those peripheral rights the specific [enumerated] rights [of the First Amendment] would be less secure. <em>Griswold</em> at 482-83. </p></blockquote> <p>His uses of precedent and arguments about &#8220;peripheral rights&#8221; helped lead into his <a href="http://www.heritage.org/initiatives/rule-of-law/judicial-activism/cases/griswold-v-connecticut">famously controversial statement</a> about &#8220;penumbras&#8221; and &#8220;emanations&#8221;:</p> <blockquote><p> The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. <em>Griswold</em> at 484. </p></blockquote> <aside> Douglas <a href="https://concurringopinions.com/archives/2013/09/emanations-and-penumbras.html">was not the first</a> to write about &#8220;penumbras&#8221; of constitutional rights, however. Justice Holmes, for example, wrote that:</p> <blockquote><p>The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. <em><a href="https://www.courtlistener.com/opinion/101298/springer-v-philippine-islands/">Springer v. Philippine Islands</a></em>, 277 U.S. 189, 209-210 (1928).</p></blockquote> </aside> <h4>Enumerated Rights and &#8220;Zones of Privacy&#8221;</h4> <p>Douglas then goes on to list some of the various enumerated rights that implicate privacy in various forms, creating what he terms &#8220;zones of privacy&#8221;:</p> <blockquote><p> Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers &#8220;in any house&#8221; in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the &#8220;right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.&#8221; The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. <em>Griswold</em> at 484. </p></blockquote> <p>And, of course, he suggests that the Framers never intended the listing of enumerated rights added to the Constitution to be all-inclusive anyway:</p> <blockquote><p> The Ninth Amendment provides: &#8220;The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.&#8221; <em>Griswold</em> at 484. </p></blockquote> <h4>Back to Tradition</h4> <p>Rhetorically, Douglas returns to the long-standing theme of the <a href="https://inpropriapersona.com/victorian-americans-hyperspecialized-gender-roles/">sacredness of the domestic sphere</a>, and of the bedroom in particular:</p> <blockquote><p> Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. <em>Griswold</em> at 485-86. </p></blockquote> <p>In his final rhetorical ending, Douglas reaches back to what the Founders might have called <a href="">natural law</a> to ground his argument in past legal traditions:</p> <blockquote><p> We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. <em>Griswold</em> at 486. </p></blockquote> <aside> An interesting comparison is to Justice Kennedy&#8217;s opinion in <a href="https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/">Obergefell v. Hodges</a>, 135 S. Ct. 2584 (2015) and his use of &#8220;<a href="https://inpropriapersona.com/the-supreme-court-and-james-q-whitmans-the-two-western-cultures-of-privacy-dignity-versus-liberty">dignity</a>&#8221; in discussing marriage and rights.<br /> </aside> <h4>Would Different Terminology Matter?</h4> <p>I sometimes wonder if current arguments against this constitutional &#8220;right to privacy&#8221; <a href="https://books.google.com/books?id=oOtVjsdUPP0C&amp;pg=PA82">would have been different</a> if Douglas had chosen to simply call it the &#8220;right to liberty&#8221; or some similar term. Would that change our discussion of contraception, abortion, or religion? Or would disconnecting it from the domestic sphere have weakened traditionalists support for the protections Douglas sought?</p> "The Supreme Court and James Q. Whitman’s “The Two Western Cultures of Privacy: Dignity Versus Liberty”" https://inpropriapersona.com/articles/the-supreme-court-and-james-q-whitmans-the-two-western-cultures-of-privacy-dignity-versus-liberty/ Tue, 29 Aug 2017 17:30:59 +0000 09ea9d131d947e4d9346123b349edbc8 <p><a href="https://law.yale.edu/james-q-whitman">James Q. Whitman</a>&#8216;s 2004 article, &#8220;<a href="http://www.yalelawjournal.org/article/the-two-western-cultures-of-privacy-dignity-versus-liberty">The Two Western Cultures of Privacy: Dignity vs. Liberty,</a>&#8221; compares American perspectives on privacy with those of Germany and France, and reveals an interesting contrast: whereas American law and rhetoric is strongest when privacy is approached as a protection against state interference, privacy protections in Germany and France are at their peak when the dignity of the individual is at stake.<figure style="max-width: 220px" class="wp-caption alignright"><a href="https://law.yale.edu/james-q-whitman"><img src="https://law.yale.edu/sites/default/files/images/faculty/whitman_jim.jpg" width="220" height="310" alt="Picture of James Q. Whitman" class="size-medium" /></a><figcaption class="wp-caption-text">James Q. Whitman of Yale University<br /></figcaption></figure></p> <h4>United States vs. Europe</h4> <p>The differences result in rhetorics and legal approaches to questions of privacy that often appear incommensurate across national boundaries.</p> <p>&#8220;Intuitions&#8221; about privacy in the United States and Europe have &#8220;shifted and mutated over time&#8221; (1154); both &#8220;obsessed with privacy&#8221; in their own particular way (1157-58).</p> <p>The American tradition is tied to eighteenth-century values, particularly to the &#8220;right to freedom from intrusions by the state especially in one&#8217;s own home&#8221; (1161).</p> <p>The European tradition, exemplified by Whitman&#8217;s French and German examples, is instead tied to a &#8220;right to <em>respect</em> and <em>personal dignity,</em>&#8221; particularly the right to control one&#8217;s &#8220;public image&#8221; (1161). This &#8220;protection of personal dignity has been a consuming concern for many generations&#8221; (1161), starting with the law of &#8220;insult&#8221; as applied originally to aristocrats and monarchs in the seventeenth and eighteenth centuries, but extending to everyone today as Europe has undergone a &#8220;slow-maturing revolt against that style of status privilege&#8221; (1163-64). In essence, &#8220;the continental law of privacy&#8221; demonstrates a &#8220;social commitment to extend to royal treatment to everyone&#8221; (1170).</p> <p>Still, despite Whitman&#8217;s conclusion that the law of privacy &#8220;is not the product of logic,&#8221; but is rather &#8220;the product of local social anxieties and local ideals&#8221; (1219), the interconnectedness of the modern world has not allowed either American or European law to remain isolated in its perspective on privacy. Over time, each approach has resisted, incorporated, and modified &#8220;intuitions&#8221; from other sources.</p> <h4>&#8220;The Right to Privacy&#8221;</h4> <p>Perhaps most notably, the seminal 1890 law-review article by Samuel Warren and Louis Brandeis, &#8220;<a href="http://www.jstor.org/stable/1321160">The Right to Privacy</a>,&#8221; sought to &#8220;introduce a continental-style right of privacy into American law&#8221; (Whitman 1204) as they railed against intrusions of the media and the loss of control by elites over their public image.</p> <p>Although in their article they insist they are merely analogizing to well-settled principles of the common law, Warren and Brandeis ground their &#8220;right to an inviolate personality&#8221; in a very continental fashion, &#8220;by drawing both on the law of insult and on <em>Urheberrecht,</em> on intellectual and artistic property&#8221; (1207).</p> <p>Warren and Brandeis recognize, however, that the Anglo-American system lacks a remedy for &#8220;mental suffering&#8221; caused by &#8220;mere contumely and insult, from an intentional and unwarranted violation of the &#8216;honor&#8217; of another&#8221; (Warren and Brandeis 198). But they nonetheless argue that the common law had come to recognize &#8220;the legal value of &#8216;feelings'&#8221; (197, n. 1).</p> <p>Thus, to bring European-style privacy protections to American law, they turn instead to &#8220;the common-law right to intellectual and artistic property&#8221; (198). Warren and Brandeis, despite rejecting one key strand of continental privacy development, develop their version in a manner reminiscent of German civil-law jurists, tracing the &#8220;evolutionary&#8221; development of the law from the &#8220;protection of mere material &#8216;property rights'&#8221; to include &#8220;new protections for the immaterial damage of emotional and moral harms&#8221; (Whitman 1208).</p> <p>The result of Warren and Brandeis&#8217; work was the &#8220;famous four forms of the privacy tort, as analyzed by William Prosser in 1960&#8221;:</p> <blockquote><p> intrusion upon seclusion, appropriation of the name or likeness of another, public disclosure of private facts &#8220;not of legitimate concern to the public,&#8221; and disclosure of private facts in such a way as to portray victims in a &#8220;false light&#8221; (Whitman 1202). </p></blockquote> <p>These &#8220;privacy torts&#8221; brought, in a limited way, a European concern with dignity and, especially, one&#8217;s &#8220;public image&#8221; into American law. But despite the much-vaunted impact of &#8220;The Right to Privacy,&#8221; the torts have had only limited success, tending in an American fashion to protect most in the case of monetarily quantifiable harms to reputation, and least when considerations of the free market and the free press were balanced against them (1208).</p> <h4><em><a href="https://www.courtlistener.com/opinion/130160/lawrence-v-texas/">Lawrence v. Texas</a></em>, 539 U.S. 558 (2003)</h4> <p>The American <em>rapprochement</em> did not end in the twentieth century with Warren and Brandeis&#8217; privacy torts. In 2003, for example, Justice Kennedy looked approvingly to European approaches<sup id="fnref-7901-fn-KennedyEurope"><a href="#fn-7901-fn-KennedyEurope" class="jetpack-footnote">1</a></sup> as he sought to ground <em><a href="https://www.courtlistener.com/opinion/130160/lawrence-v-texas/">Lawrence</a></em> &#8212; which struck down a Texas anti-sodomy law &#8212; in both &#8220;liberty and dignity&#8221; (1162). But even then, true to American tradition, the home, bastion of liberty, remained at the core of the decision<sup id="fnref-7901-fn-RaichHome"><a href="#fn-7901-fn-RaichHome" class="jetpack-footnote">2</a></sup>.<figure style="max-width: 189px" class="wp-caption alignright"><img src="https://upload.wikimedia.org/wikipedia/commons/thumb/2/20/Anthony_Kennedy_official_SCOTUS_portrait.jpg/189px-Anthony_Kennedy_official_SCOTUS_portrait.jpg" width="189" height="240" alt="Picture of Justice Anthony Kennedy" class="size-medium" /><figcaption class="wp-caption-text">Justice Anthony Kennedy</figcaption></figure></p> <p>Drawing primarily on American traditions of privacy versus the state, Justice Kennedy begins by explaining privacy as a form of liberty in the following terms:</p> <blockquote><p> Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. <em>Lawrence</em>, 539 at 562. </p></blockquote> <p>Kennedy pays tribute to European &#8220;intuitions&#8221; on the matter of privacy by noting that the European Court of Human Rights rejected the reasoning in the case <em>Lawrence</em> overturned &#8212; <em><a href="https://www.courtlistener.com/opinion/111738/bowers-v-hardwick/">Bowers v. Hardwick</a></em>, 478 U.S. 186 (1986):</p> <blockquote><p> And, to the extent <em>Bowers</em> relied on values shared with a wider civilization, the case&#8217;s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. <em>Lawrence</em>, 539 U.S. at 560. </p></blockquote> <p>Kennedy then attempts, albeit in a limited way, to unify the overriding European concern about &#8220;dignity&#8221; with the American valorization of privacy within the home: &#8220;adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.&#8221; <em>Lawrence</em>, 539 U.S. at 567.</p> <div class="footnotes"> <hr /> <ol> <li id="fn-7901-fn-KennedyEurope"> &#8220;The Supreme Court has reaffirmed the importance of international law in defining the liberties protected by the Bill of Rights. <em>See <a href="https://www.courtlistener.com/opinion/130160/lawrence-v-texas/">Lawrence v. Texas</a></em>, 539 U.S. 558, 123 So. Ct. 2472, 2481, 2483 (2003) (discussing the relevance of laws and practices of other nations, international treaties, and decisions of the European Court of Human Rights, in determining what limits the Due Process Clause of the Fourteenth Amendment places on states&#8217; power to regulate private sexual conduct between consenting adults).&#8221; <em><a href="https://www.courtlistener.com/opinion/2317004/kane-v-winn/">Kane v. Winn</a></em>, 319 F. Supp.2d 80 (D. Mass. 2004).&#160;<a href="#fnref-7901-fn-KennedyEurope">&#8617;</a> </li> <li id="fn-7901-fn-RaichHome"> <em>Lawrence</em> “recogniz[ed a] narrowly defined fundamental right to engage in consensual sexual activity, including homosexual sodomy, in the home without government intrusion.” <em><a href="https://www.courtlistener.com/opinion/1193513/raich-v-gonzales/">Raich v. Gonzalez</a></em>, 500 F.3d 850 (9th Cir. 2007).&#160;<a href="#fnref-7901-fn-RaichHome">&#8617;</a> </li> </ol> </div> "Thoughts on the Power and the Limits of Presidential Pardons" https://inpropriapersona.com/articles/the-power-and-the-limits-of-presidential-pardons/ Sat, 26 Aug 2017 23:20:48 +0000 ea4cc66c7a1d4e038466ef24eced3c33 <p>Was President Trump right when he tweeted that &#8220;<a href="https://twitter.com/realDonaldTrump/status/888724194820857857">all agree the U. S. President has the complete power to pardon</a>&#8220;? It is true that the power of the President of the United States to issue pardons is indeed one of the president&#8217;s most powerful Article II powers &#8212; but, it is also, despite the implication of President Trump&#8217;s tweet, <em>limited</em>.</p> <aside><strong>Further Reading:</strong></p> <ul> <li><a href="https://www.law.cornell.edu/constitution/articleii">Article II, Section 2,<br /> Clause 1 of the Constitution</a></li> <li><a href="https://www.courtlistener.com/opinion/100564/ex-parte-grossman/"><em>Ex Parte Grossman</em></a>, 267 U.S. 87, 110 (1925)</li> <li><a href="https://inpropriapersona.com/wp-content/uploads/2017/08/RS20829.pdf">An Overview of the Presidential Pardoning Power</a> from the Congressional Research Service (2006)</li> <li><a href="http://www.npr.org/2017/07/27/539825453/the-presidential-pardon-power-what-are-its-limits">The Presidential Pardon Power: What Are Its Limits?</a> from NPR (2017)</li> <li><a href="https://lawfareblog.com/problem-donald-trumps-constitution-part-ii-prospect-arpaio-pardon">The Problem of Donald Trump’s Constitution, Part II: The Prospect of an Arpaio Pardon</a> from Lawfare (2017)</li> <li><a href="https://www.vox.com/policy-and-politics/2017/7/21/16007934/donald-trump-mueller-russia-investigation-pardon-impeachment">President Trump is considering pardoning himself</a> from Vox (2017)</li> </ul> </aside> <p>President Trump has a point: the president&#8217;s power to pardon is exceptionally strong. It is not, however, &#8220;complete&#8221; in the sense of &#8220;absolute&#8221;; in reality, the power comes with limits, but those limits require <em>people</em> to enforce them.</p> <p>Given its power, and the potential for abuse, the power to pardon is normally used according to strict norms and traditions &#8212; but, as with President Trump&#8217;s pardoning of former sheriff Joe Arpaio, there are some notable exceptions.</p> <p>Because of just how extensive and powerful it is, the power to pardon has the potential for very real abuse by a &#8220;bad actor&#8221; occupying the office of the president.</p> <p>And like all of the &#8220;checks and balances&#8221; embedded in the American system (including those inherited from England), it very much relies on the <em>person</em> in power to use it ethically and various <em>people</em> (Congress, voters) to keep him or her in check.</p> <h4>Limits of the President&#8217;s Power to Pardon</h4> <p><em>First, the power of the president to pardon <a title="Ex Parte Grossman, 267 U.S. 87, 113 (1925)" href="https://www.courtlistener.com/opinion/100564/ex-parte-grossman/">does not cover impeachment</a>.</em> Impeachment is one key &#8220;check&#8221; of executive power entrusted to the legislative branch.</p> <p><em>Second, it <a href="http://heinonline.org/HOL/Page?handle=hein.journals/ylr106&amp;g_sent=1&amp;collection=journals&amp;id=797">only covers offenses against the United States</a>.</em> Private liability for civil harms cannot be &#8220;pardoned&#8221; (but executive-branch officials have wide, but not complete, immunity for official actions while in office). So, for example, victims can bring private lawsuits for damages against a defendant even if that person has also been pardoned for those actions and thus faces no criminal liability.</p> <p><em>Third, it <a title="Ex Parte Garland, 71 U.S. 333, 380 (1866)" href="https://www.courtlistener.com/opinion/87779/ex-parte-garland/">does not cover state proceedings</a>.</em> Only a state governor, acting under the authority of a state constitution and its rules, may issue pardons for violations of state laws. This is another limit on federal power; this one was created by our division into a federal system.</p> <aside>Neither the 14th Amendment, nor the Supremacy Clause, nor the judicially approved increase in the Commerce Power have changed these foundational limits.</aside> <h4>Traditions, Norms, and Exceptional Cases</h4> <p>Not all limits are derived from the Constitution. Traditions and norms are also key. When they are violated, it&#8217;s often a clue there&#8217;s a potential problem.</p> <p>In normal practice (that is, as routinely managed for the last <a href="https://web.archive.org/web/20170630232205/https://www.justice.gov/pardon/about-office">125 years</a>), pardons are first thoroughly reviewed by the Department of Justice&#8217;s <a href="https://web.archive.org/web/20170826024947/https://www.justice.gov/pardon">Office of the Pardon Attorney</a> and then signed by the President of the United States:</p> <blockquote><p>All requests for executive clemency for federal offenses are directed to the Pardon Attorney for investigation and review. The Pardon Attorney prepares the Department&#8217;s recommendation to the President for final disposition of each application.</p> <p>&#8212; <a href="https://web.archive.org/web/20170630232205/https://www.justice.gov/pardon/about-office">About the Office</a>, <a href="https://web.archive.org/web/20170826024947/https://www.justice.gov/pardon">Office of the Pardon Attorney</a>, 2017.</p></blockquote> <p>However, <a title="Hoffa v. Saxbe, 378 F.Supp. 1221, 1243 (D.C. 1974)" href="https://www.courtlistener.com/opinion/2124607/hoffa-v-saxbe/">the regulations governing this process are not binding</a> on the president. Only Article II itself is.</p> <p>Unsurprisingly, then, there are some exceptional cases of pardons, including <a title="Murphy v. Ford, 390 F.Supp. 1372 (W.D. Mich. 1975)" href="https://www.courtlistener.com/opinion/1966699/murphy-v-ford/">President Ford&#8217;s pardon of Richard Nixon</a> after his resignation, <a title="President Pardons Viet Draft Evaders" href="https://www.washingtonpost.com/archive/politics/1977/01/22/president-pardons-viet-draft-evaders/dfa064a5-83fc-4efb-a904-d72b390a909e/">President Carter&#8217;s pardon of Vietnam-era draft dodgers</a>, and <a title="Bush Pardons 6 in Iran Affair, Aborting a Weinberger Trial; Prosecutor Assails 'Cover-Up'" href="http://www.nytimes.com/books/97/06/29/reviews/iran-pardon.html">President George H.W. Bush&#8217;s pardon of individuals facing charges relating to the Iran-Contra Affair</a>.</p> <p>The pardon of Arpaio, which <a href="https://www.buzzfeed.com/zoetillman/joe-arpaios-pardon-did-not-go-through-the-justice">follows none of the traditional norms or practices</a>, falls into the &#8220;exceptional cases&#8221; category.</p> <h4>The Potential for Abuse</h4> <p>Why should we be concerned about the power of the president to issue pardons?</p> <p>Christopher Smith and Scott Johnson, in response to Bush&#8217;s pardoning of many of those involved in the Iran-Contra scandal, <a href="http://heinonline.org/HOL/Page?handle=hein.journals/waynlr35&amp;g_sent=1&amp;collection=journals&amp;id=1125">explain</a> one key problem with the power to pardon:</p> <blockquote><p>The President can always exercise the authority to pardon executive branch officials, thus limiting the availability of damaging information that might have been produced in a public proceeding. The existing weaknesses in accountability mechanisms directed against misconduct within the executive branch are severely exacerbated when coupled with the President&#8217;s ability to pardon subordinates in order to hide misdeeds connected with the White House.</p></blockquote> <p>Such a concern remains a realistic one in the context of the <a href="https://www.usatoday.com/story/news/politics/2017/08/03/special-counsel-robert-mueller-impanels-grand-jury-russia-investigation-intensifies-reports-say/537839001/">current investigation into Russian interference in the last presidential election</a>.</p> <p>(And, of course, there&#8217;s always the worry about the potential for &#8220;<a href="http://heinonline.org/HOL/Page?handle=hein.journals/ylr106&amp;g_sent=1&amp;collection=journals&amp;id=797">self-pardons</a>,&#8221; however <a href="https://www.vox.com/policy-and-politics/2017/7/21/16007934/donald-trump-mueller-russia-investigation-pardon-impeachment">unlikely that might or might not turn out to be</a>.)</p> <h4>Possible Solutions</h4> <p>Up to today, the courts have broadly interpreted the Constitution&#8217;s grant of power to the president under Article II. One solution? An amendment to the Constitution. Another approach? The courts could insist that the president be <em>specific</em> in issuing pardons.</p> <figure id="attachment_7885" style="max-width: 238px" class="wp-caption alignright"><img class="size-medium wp-image-7885" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_238/v1514415954/Richard-M.-Nixon-1971_ebuqfw.jpg" alt="" width="238" height="300" /><figcaption class="wp-caption-text">Richard M. Nixon, July 8, 1971. National Archives and Records Administration (NARA).</figcaption></figure> <p>Smith and Johnson argue that this kind of &#8220;specificity&#8221; limitation has strong historical support. It might help combat some of the problems of executive abuse of the pardon power without requiring a constitutional amendment or even a fundamental reinterpretation of the Constitution.</p> <p>On the other hand, it is worth noting that the courts have upheld the rather <a href="http://cdn.loc.gov/service/ll/fedreg/fr039/fr039176/fr039176.pdf">broad language used by President Ford to pardon former President Nixon</a> on September 8, 1974:</p> <blockquote><p>NOW, THEREFORE, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.</p></blockquote> <p>Again, the <em>people</em> can step in: Ford lost the next election to Carter.</p> <h5>But doesn&#8217;t a pardon for &#8220;contempt of court&#8221; infringe on the judicial branch&#8217;s power?</h5> <p>President Trump&#8217;s <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/26/why-trumps-pardon-of-joe-arpaio-isnt-like-most-presidential-pardons/">pardon of former sheriff Joe Arpaio</a> for contempt of court raises a potential separation of powers issue.</p> <p>Arpaio, after all, was convicted for disobeying the order of a court &#8212; pardoning him, in effect, intrudes on the power of the courts under Article III to enforce their own orders and judgments. The Supreme Court has heard this argument before:</p> <blockquote><p>[It] is urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary and violate the primary constitutional principle of a separation of the legislative, executive and judicial powers.</p></blockquote> <p>In 1925, however, the Supreme Court said these pardons were constitutional and <a title="Ex Parte Grossman, 267 U.S. 87 (1925)" href="https://www.courtlistener.com/opinion/100564/ex-parte-grossman/">that such intrusions were indeed within the Article II powers of the president</a>:</p> <blockquote><p>It [the power to pardon] is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it.</p></blockquote> <p>Justice Taft, writing for the unanimous majority, added this caveat and belief: &#8220;Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.&#8221;</p> <p>His suggestion if the pardon power were to be abused?</p> <blockquote><p>Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.</p></blockquote> <figure id="attachment_7868" style="max-width: 300px" class="wp-caption alignleft"><img class="size-medium wp-image-7868" src="http://res.cloudinary.com/krisnelson/image/upload/h_200,w_300/v1514415966/Joe-Arpaio-by-Gage-Skidmore_qurbzg.jpg" alt="" width="300" height="200" /><figcaption class="wp-caption-text">Joe Arpaio by Gage Skidmore (CC BY-SA 2.0)</figcaption></figure> <h4>Pardons as an Admission of Guilt</h4> <p>Also relevant to the current situation is that courts have pointedly insisted that &#8220;pardons imply guilt&#8221;: by accepting the pardon, Arpaio is also, in effect, accepting that he is indeed <a href="http://www.npr.org/sections/thetwo-way/2017/07/31/540629884/ex-sheriff-joe-arpaio-convicted-of-criminal-contempt">guilty of the underlying crime</a> (although that may well be said to only be the crime of ignoring a court order, not necessarily anything more), even as he is relieved of the punishment:</p> <blockquote><p>[A]s the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate the fact of the commission of the crime and the conviction thereof; it does not wash out the moral stain; as has been tersely said; it involves forgiveness and not forgetfulness.</p> <p>&#8212; <a href="https://www.courtlistener.com/opinion/1966699/murphy-v-ford/"><em>Murphy v. Ford</em></a>, 390 F. Supp. 1372, 1375 (W.D.Mich. 1975).</p></blockquote> "Publishing leaked materials: the Pentagon Papers case" https://inpropriapersona.com/articles/publishing-leaked-materials-pentagon-papers-case/ Fri, 07 Jul 2017 18:22:20 +0000 ef2596e93e3a680399048d63f2267059 <p>Within a month of taking office, President Donald Trump <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/16/president-trump-is-going-to-war-on-leaks-how-scared-should-the-leakers-be/">announced his desire to go after &#8220;leakers&#8221;</a> who have helped embroil his administration in controversy. He also declared many traditional news outlets to be &#8220;<a href="http://www.newyorker.com/news/news-desk/donald-trump-and-the-enemies-of-the-american-people">enem[ies] of the American People</a>!&#8221; What does this mean for those who publish such material? The so-called &#8220;<a href="https://www.nytimes.com/2016/06/30/insider/1971-supreme-court-allows-publication-of-pentagon-papers.html">Pentagon Papers case</a>&#8221; from 1971 suggests newspaper publishers have a strong defense against government interference (those who do the leaking are on much <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/16/president-trump-is-going-to-war-on-leaks-how-scared-should-the-leakers-be/?utm_term=.595b44a4e7c1">shakier ground</a> &#8212; but <a href="http://harvardlawreview.org/2013/12/the-leaky-leviathan-why-the-government-condemns-and-condones-unlawful-disclosures-of-information/">it&#8217;s complicated</a>).</p> <aside><em>Note: If you are involved in reporting news, I recommend you start with the <a href="https://www.rcfp.org/browse-legal-resources/guides" data-versionurl="http://web.archive.org/web/20170206202636/https://www.rcfp.org/browse-legal-resources/guides" data-versiondate="2017-02-06T20:26:37+00:00" data-amber-behavior="">Legal Resource Guides</a> provided by the <a href="https://www.rcfp.org/" data-versionurl="http://web.archive.org/web/20170206195027/https://www.rcfp.org/" data-versiondate="2017-02-06T19:50:28+00:00" data-amber-behavior="">Reporters Committee for Freedom of the Press</a>. Consulting an attorney licensed in your jurisdiction is also a good idea, too.</em></aside> <p>168 days after inaugurating the new president, relationships with the press are <a href="http://www.cbsnews.com/news/trump-attack-cnn-tweet/">have not improved</a>, although, as far as I know, the Administration has not yet attempted to use the courts to directly suppress stories.</p> <p>Nonetheless, the focus on &#8220;leaks&#8221; and the attacks on the press suggest that cases arising out of the <a href="http://www.washingtonpost.com/wp-srv/politics/special/watergate/timeline.html">Nixon Watergate scandal</a>, in which the Supreme Court offered a vigorous defense of the rights of newspapers to publish even &#8220;leaked&#8221; material, are still critical legal precedent that news organizations continue to rely on today.</p> <p>The story of the legal precedent that still protects news organizations today began with the so-called &#8220;Pentagon Papers,&#8221; provided by Daniel Ellsberg as &#8220;leaked&#8221; documents to various newspapers in the early 1970s.</p> <h3>The Pentagon Papers</h3> <p>Secretary of Defense Robert McNamara commissioned the Pentagon Papers, also known as the &#8220;Report of the Office of the Secretary of Defense Vietnam Task Force,&#8221; in 1967. They laid out the context of Vietnam and the region as a whole and the activities of the United States there, including instances where the government had lied to the American people about its actions.</p> <p>Believing that the American people deserved to know the truth about the ongoing war in Vietnam, <a href="https://en.wikipedia.org/wiki/Daniel_Ellsberg">Daniel Ellsberg</a>, a RAND defense analyst, provided the documents to various newspapers beginning in 1971. (He was <a href="https://timeline.com/pentagon-papers-famous-leak-prison-9772ec594f73">later charged</a> under the <a href="https://en.wikipedia.org/wiki/Espionage_Act_of_1917">Espionage Act of 1917</a>; a federal judge dismissed the charges against him in 1973.)</p> <p>The <em>New York Times </em>published its first article in a planned series in 1971. In response, Nixon Administration moved quickly to obtain a federal court injunction blocking further publication of the materials by the <em>Times</em> or the <em>Washington Post</em>, which was also planning a series of articles.</p> <h3><em>New York Times Co. v. United States,</em> 403 U.S. 713 (1971)</h3> <p>The Nixon Administration argued in federal court that publication of the classified report would undermine national security and threaten the lives of American soldiers. Though doubtful of the government position, lower courts granted temporary injunctions against immediate publication by the <em>Times</em> and the <em>Post</em>; in June of 1971, the United States Supreme Court <a href="https://www.oyez.org/cases/1970/1873">ruled 6-3</a> that the government had not shown that the potential harms publication might cause outweighed the strong liberty interests protected by the First Amendment.</p> <h4>The majority decision</h4> <p>The core of the<em> </em>majority decision simply upheld lower-court decisions that the government had not met the high burden required to restrain publication by the press, as described in three prior Supreme Court cases:</p> <blockquote><p>&#8220;Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.&#8221; <em>Bantam Books, Inc. v. Sullivan,</em> 372 U.S. 58, 70 (1963); see also <em>Near v. Minnesota,</em> 283 U.S. 697 (1931). The Government &#8220;thus carries a heavy burden of showing justification for the imposition of such a restraint.&#8221; <em>Organization for a Better Austin v. Keefe,</em> 402 U.S. 415, 419 (1971).</p></blockquote> <h4>Concurring opinions</h4> <p>Several concurring opinions were in many ways more important for later cases involving the First Amendment. All elaborated in different ways on the importance of press freedoms and the role of the press to check the power of the executive branch.</p> <h4>Dissenting opinions</h4> <p>The three dissenters generally argued that proceedings had moved too fast for the courts to evaluate the potential impact of such a vast amount of material, that the government ought to have been allowed to be more involved in exactly what was published and when, and that, potentially, that the Court ought to be deferring to Congress and the President on the issue of classified materials.</p> <h3>The take-away</h3> <p>As I noted in 2010 <a href="https://inpropriapersona.com/the-1971-supreme-court-on-wikileaks/">regarding WikiLeaks</a>, &#8220;leaks&#8221; of sensitive government material are potentially problematic. Many publications may proceed to publish materials without enough knowledge to evaluate the potential harm they might do to people (putting the lives of soldiers at risk, for example), to delicate diplomatic negotiations, or to the often messy business of actually <em>governing</em> in a democracy (reducing the desire of some to ever compromise, for fear of details leaking to their political opponents).</p> <p>But while protecting against these harms is a real concern, and in 2017 might well be an argument in favor of a <em>responsible </em>press (whatever exactly that might mean), several justices responding to the issues in the Pentagon Papers case captured the absolutely critical importance in a democracy to protecting the right of the press to public <em>despite these potential harms.</em></p> <p>Justice Douglas thus argued:</p> <blockquote><p>The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. &#8230; Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be “<a href="https://inpropriapersona.com/fake-news-libel-press-protections-executive-power/">uninhibited, robust, and wide-open</a>” debate.</p></blockquote> <p>And Justice Black added:</p> <blockquote><p>The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. &#8230; The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.</p></blockquote> <p>Whether the current Supreme Court agrees with these very strong statements in support of the First Amendment remains to be seen, particularly in a time when news organizations come in many forms, from long-standing, traditional news organizations like <em>The Wall Street Journal</em> and <em>The New York Times</em>, to newer television networks like <em>CNN</em> and <em>Fox News,</em> and even &#8220;blog&#8221; or &#8220;alt-right&#8221; online-only publications like <em>Breitbart.</em></p> <p>And, of course, whatever the rhetoric might suggest, these cases only protect the publishers and the journalists, not the &#8220;leakers&#8221; themselves. <a href="https://en.wikipedia.org/wiki/Daniel_Ellsberg">Daniel Ellsberg</a> was <a href="https://timeline.com/pentagon-papers-famous-leak-prison-9772ec594f73">charged</a>, after all.</p> "Promoting involuntary sterilization: early hints of problems in the 1930s" https://inpropriapersona.com/articles/promoting-involuntary-sterilization-early-hints-problems-1930s/ Thu, 16 Feb 2017 17:30:54 +0000 ed8cdfbb72b1638915b5b4561c05af92 <p>In 1937, William M. Kantor published an interview with an early pioneer in sterilization (especially of men), Dr. Harry Sharp, in the <em>Journal of Heredity</em>.[1] Kantor had, according to documents in the archives of California&#8217;s <a href="http://www.oac.cdlib.org/findaid/ark:/13030/tf2h4n98gb/entire_text/">Human Betterment Foundation</a> (California was a pioneer in <a href="https://inpropriapersona.com/eugenic-sterilization-california/">eugenic sterilization</a>), interviewed Dr. Sharp in 1935 about his role as a physician and surgeon at Jeffersonville, a penal institution in Indiana. The article, &#8220;<a href="https://scholar.google.com/scholar?hl=en&amp;q=William+M.+Kantor%2C+%E2%80%9CBeginnings+of+Sterilization+in+America%2C%E2%80%9D+J+Hered+28%2C+no.+11+%28November+1%2C+1937%29&amp;btnG=&amp;as_sdt=1%2C5&amp;as_sdtp=">Beginnings of Sterilization in America</a>,&#8221; is notable as much for what was not included as for what was.<a id="fnref-2" class="footnote" title="see footnote" href="#fn-2">[2]</a></p> <h3><em>The Journal of Heredity</em></h3> <p>As of 2016, the <a href="https://academic.oup.com/jhered">Journal of Heredity</a> is published by Oxford Journals on behalf of the <a href="https://en.wikipedia.org/wiki/American_Genetic_Association">American Genetic Association</a>, and now covers &#8220;<a href="http://www.oxfordjournals.org/our_journals/jhered/about.html">organismal genetics across a wide range of disciplines and taxa</a>.&#8221; According to the <a href="http://www.oxfordjournals.org/">Oxford Journals</a> page about the publication, &#8220;Virtually every major figure in the field has contributed to the journal,&#8221; which &#8220;[o]ver the last 100 years &#8230; has established and maintained a tradition of scholarly excellence in the publication of genetics research.&#8221;</p> <p>As of 1919, the <em>Journal of Heredity</em>&#8212;formerly known as the <em>American Breeders&#8217; Magazine</em>&#8212;billed itself as &#8220;[a] monthly publication devoted to Plant Breeding, Animal Breeding and Eugenics.&#8221;<a id="fnref-3" class="footnote" title="see footnote" href="#fn-3">[3]</a> The January edition of 1919 included the following articles:</p> <ul> <li>&#8220;Chimeras in Corn Hybrids&#8221;;</li> <li>&#8220;Better American Families,&#8221; by Wilhelmine E. Key of the Eugenics Record Office;</li> <li>&#8220;New Everbearing Strawberries&#8221;;</li> <li>&#8220;Testing New Foods,&#8221; by &#8220;Agricultural Explorer&#8221; David Fairchild of the U.S. Department of Agriculture;</li> <li>&#8220;The Fighting Abilities of Different Races,&#8221; notably published just at the end of WWI; and</li> <li>&#8220;Race Mixture in Hawaii,&#8221; by Vaughan MacCaughey (&#8220;What is likely to appear is the gradual growth of the new stock, fitting itself for leadership in the minor business and clerical activities of the islands.&#8221;)<a id="fnref-4" class="footnote" title="see footnote" href="#fn-4">[4]</a></li> </ul> <p>In the 1919 volumes, under the heading &#8220;What Genetics Is,&#8221; the editors write that the &#8220;object of the science of genetics&#8221; is to gain &#8220;[a]n exact determination of the laws of heredity.&#8221;</p> <blockquote><p>The knowledge so gained finds its application in methods for the improvement of cultivated plants and domesticated animals and, most important of all, in the improvement of the human race through the science of eugenics, which was defined by its founder, Francis Galton, as &#8220;the study of agencies under social control that may improve or impair the racial qualities of future generations,&#8221; either physically or mentally.&#8221;<a id="fnref-5" class="footnote" title="see footnote" href="#fn-5">[5]</a></p></blockquote> <p>As of 1937, when Kantor&#8217;s article appeared, the front matter of the journal no longer contained references to <a href="https://inpropriapersona.com/sex-eugenics-sterilization/">eugenics</a> or <a href="https://en.wikipedia.org/wiki/Francis_Galton">Galton</a>, but eugenics still appeared favorably in various articles, as evidenced by, for example, book reviews about American versus German eugenics, and of course Kantor&#8217;s favorable history of sterilization in America.<a id="fnref-6" class="footnote" title="see footnote" href="#fn-6">[6]</a></p> <h3>Dr. Sharp and turn-of-the-century sterilization</h3> <p>Dr. Harry C. Sharp was a logical choice for Kantor to use as the core of his article. More than thirty years earlier, Dr. Sharp himself had published an article on sterilization and eugenics in the <em>New York Medical Journal,</em> in which he had argued for the benefits of sterilization and explained his early use of the procedure. Without offering much in the way of supporting evidence, Dr. Sharp wrote:</p> <blockquote><p>[P]ractically all other animal kind protect themselves, or are protected, by putting to death those weaklings that are unable to weather the storm, and others that appear peculiar are castrated by their sires, and none but the perfectly healthy are left to reproduce their kind. &#8230; It is altogether probable that we, through our spirit of humanity, our broad ideas of liberty and individual right, have gone too far in this direction [of giving way for all to marry that will, too much liberty and indulgence in tolerating all sorts] for the good of the entire race.<a id="fnref-7" class="footnote" title="see footnote" href="#fn-7">[7]</a></p></blockquote> <p>But despite the harsh rhetoric, and more in keeping with his role as a physician, Dr. Sharp believed castration unjustifiable, &#8220;for the method employed to render these unfortunates sterile should not in itself be a punishment to the individual&#8212;it must not result in a deformity, neither must it interfere with his enjoyment of life.&#8221;<a id="fnref-8" class="footnote" title="see footnote" href="#fn-8">[8]</a></p> <p>According to Dr. Sharp&#8217;s 1902 article, after performing vasectomies in forty-two patients, &#8220;whose ages range from seventeen to twenty-five,&#8221; he now believed that it &#8220;does not impair the sexual power,&#8221; but that patients instead demonstrated marked improvements in both mental and physical functioning:</p> <blockquote><p>[T]hey improve mentally and physically, in that they increase in flesh, feel that they are stronger, sleep better, their memory improves, the will becomes stronger, and that while prior to the operation they made no advance in school, their advance is now fairly satisfactory.<a id="fnref-9" class="footnote" title="see footnote" href="#fn-9">[9]</a></p></blockquote> <p>In short, sterilization benefits both patient and society to such an extent that Dr. Sharp argues that doctors should advocate for legislation that would give &#8220;those in charge of State institutions the authority to render every male sterile who passes its portals, whether it be almshouse, insane asylum, institute for the feeble minded, reformatory, or prison.&#8221;<a id="fnref-10" class="footnote" title="see footnote" href="#fn-10">[10]</a> (A skeptical modern reader might be inclined to ask if, given these vast reported improvements, perhaps all but a few men ought to be sterilized for their own good and the good of society?)</p> <h3>Published versus unpublished accounts of an interview with Dr. Sharp</h3> <p>In the record of an interview recorded in the <a href="http://www.oac.cdlib.org/findaid/ark:/13030/tf2h4n98gb/entire_text/">E. S. Gosney Papers and Records of the Human Betterment Foundation</a> and dated 1935, Dr. Sharp says he performed some five hundred sterilization operations&#8212;presumably carried out on male penal inmates&#8212;before a <a href="https://en.wikisource.org/wiki/1907_Indiana_Eugenics_Law">1907 Indiana law</a> explicitly authorized them.<a id="fnref-11" class="footnote" title="see footnote" href="#fn-11">[11]</a></p> <p>In the 1935 archival version of the interview, Dr Sharp explains, &#8220;Operations were performed on the personal request of the individual, with written consent, prior to the law of 1907, with the exception of one case.&#8221;<a id="fnref-12" class="footnote" title="see footnote" href="#fn-12">[12]</a> Notably, Kantor&#8217;s article, published in 1937 but clearly drawing on the same interview as the 1935 Gosney archival material, instead reads: &#8220;Operations at Jeffersonville were performed on the personal request of the individual, with written consent, prior to the law of 1907.&#8221;<a id="fnref-13" class="footnote" title="see footnote" href="#fn-13">[13]</a> Kantor makes no mention of the &#8220;exception,&#8221; suggesting that scientific publications like the <em>Journal of Heredity</em> were beginning to recognize the potential issues of patient consent and possibly even discriminatory treatment based on race.</p> <h4>An exceptional case expunged from print</h4> <p>The exceptional &#8220;one case&#8221; referred to by Dr. Sharp&#8212;but left out of Kantor&#8217;s article in <em>The Journal of Heredity</em>&#8212;was a vasectomy carried out by Dr. Sharp on &#8220;a syphilitic Negro.&#8221; Dr. Sharp is quite up-front about his actions, explaining that &#8220;while operating for chancre, the vas was exposed, and I performed a vasectomy without his knowledge or consent.&#8221; He added, &#8220;I thought it was a shame for this diseased Negro to go on freely propagating his kind.&#8221; A year later, when asked by Dr. Sharp in a follow-up interview, &#8220;the Negro&#8221; made it clear &#8220;he never knew what had happened to him.&#8221; Dr. Sharp checked that he &#8220;had felt no ill effects, whatever,&#8221; and then &#8220;let the matter drop&#8221; without ever informing him of the operation or its effects.<a id="fnref-14" class="footnote" title="see footnote" href="#fn-14">[14]</a></p> <p>Another notable case appears in the Gosney version of Dr. Sharp&#8217;s interview but not in Kantor&#8217;s published article: a salpingecomy (the tying of the Fallopian tubes) he performed on a twelve-year old epileptic after her family appealed to him for help (presumably her family consented to his operating on the child, although there is no indication that anyone considered the wishes of the girl herself). Dr. Sharp notes that she did not suffer from any seizures while he monitored her for two years after the operation&#8212;he is very careful to allow that this result might be &#8220;merely coincidental&#8221; to the operation&#8212;though he also adds, perhaps more out of wishful thinking than actual belief, that &#8220;it is possible that there was some connection&#8221; between her sterilization before puberty and the cessation of her epileptic seizures.<a id="fnref-15" class="footnote" title="see footnote" href="#fn-15">[15]</a></p> <h4>Consent before and after Indiana&#8217;s 1907 sterilization law</h4> <p>Both the Gosney document and Kantor&#8217;s published article contrast the state of affairs at Jeffersonville before and after the passage of the <a href="https://en.wikisource.org/wiki/1907_Indiana_Eugenics_Law">1907 Indiana law authorization sterilization on the recommendation of an expert panel</a> (and with no mention of any need for patient consent), stating, &#8220;Previous to the passage of the law, all patients gave their consent in writing, but not after the law was passed.&#8221;<a id="fnref-16" class="footnote" title="see footnote" href="#fn-16">[16]</a></p> <p>In both Kantor&#8217;s published article and in the Gosney document, Dr. Sharp speaks favorably of one other specific case that today we would consider a violation of informed consent: a vasectomy performed on an inmate&#8212;Kantor&#8217;s published article calls him a &#8220;boy from Missouri&#8221;&#8212;who &#8220;complained of excessive masturbation, and insisted on castration.&#8221;<a id="fnref-17" class="footnote" title="see footnote" href="#fn-17">[17]</a></p> <p>Dr. Sharp, who &#8220;did not feel justified in performing that mutilation,&#8221; instead &#8220;convinced the patient that he would receive all the benefits that should be expected&#8221; and performed a vasectomy instead, telling the inmate it &#8220;had all the effects of castration, as far as getting away from masturbation.&#8221;<a id="fnref-18" class="footnote" title="see footnote" href="#fn-18">[18]</a> In the Gosney document, a parenthetical note reads: &#8220;perhaps I misrepresented to him.&#8221;<a id="fnref-19" class="footnote" title="see footnote" href="#fn-19">[19]</a> Kantor&#8217;s published version preserves Dr. Sharp&#8217;s potential doubt, but excuses it: &#8220;Perhaps I misrepresented the facts to him; but we did not know so much about sexual science in those days.&#8221;<a id="fnref-20" class="footnote" title="see footnote" href="#fn-20">[20]</a></p> <p>When, after six months, the young inmate complained again about &#8220;excessive masturbation,&#8221; Dr. Sharp says he gave him another &#8220;treatment,&#8221; telling the young man he would perform an actual castration if he did not notice improvements.<a id="fnref-21" class="footnote" title="see footnote" href="#fn-21">[21]</a> But this time it worked, according to Dr. Sharp: &#8220;He reported later that he had stopped masturbating, felt very little desire to do so, his mind was better, and he was making better progress in school.&#8221;<a id="fnref-22" class="footnote" title="see footnote" href="#fn-22">[22]</a></p> <h4>Sterilization is good for the patient</h4> <p>Although the words vary slightly between versions, both interviews show that Dr. Sharp was clearly pleased by this outcome: &#8220;Here was a condition that would not mutilate or impair health, and yet improve the nervous system.&#8221;<a id="fnref-23" class="footnote" title="see footnote" href="#fn-23">[23]</a></p> <p>In Kantor&#8217;s published version, but oddly not in the Gosney document, Kantor says that Dr. Sharp noted, &#8220;Other inmates began to request that they have the advantage of the same operation.&#8221;<a id="fnref-24" class="footnote" title="see footnote" href="#fn-24">[24]</a> The Kantor version, also adds expert endorsement of the procedure and its potential improvements, as well as a kind of after-the-fact approval by patients: &#8220;this method of preventing procreation is so infinitely superior to all other proposed&#8212;that it is endorsed by the persons subjected to it,&#8221; including &#8220;three physicians,&#8221; all of whom &#8220;assured me that they have a decided lessening of muscular and nervous fatigue.&#8221;<a id="fnref-25" class="footnote" title="see footnote" href="#fn-25">[25]</a></p> <h4>Sterilization is in the public interest, too</h4> <p>Both the 1935 Gosney and the 1937 <em>Journal of Heredity</em> versions of Dr. Sharp&#8217;s interview strongly imply that vasectomies are in the interests of both the public and of the patients themselves, a position Dr. Sharp also strongly argued for in his earlier 1902 article.</p> <p>Kantor&#8217;s 1937 article goes further than the Gosney document does by adding additional expert opinions beyond Dr. Sharp, like those of Dr. A. J. Ochsner, another early proponent of vasectomies, who makes an argument that sterilizations are in the public good: &#8220;This method would protect the community at large without harming the criminal. The same treatment could reasonably be suggested for chronic inebriates, imbeciles, perverts, and paupers.&#8221;<a id="fnref-26" class="footnote" title="see footnote" href="#fn-26">[26]</a></p> <p>Such arguments fit well into the use of the government&#8217;s &#8220;<a href="https://inpropriapersona.com/salus-populi-suprema-lex/">police power</a>&#8221; to infringe on individual liberties in the name of public health, as in <em><a href="https://www.courtlistener.com/opinion/101076/buck-v-bell/">Buck v. Bell</a></em> (1927) and <em><a href="https://www.courtlistener.com/opinion/96230/jacobson-v-massachusetts/">Jacobson v. Massachusetts</a></em> (1905).</p> <div class="footnotes"> <hr /> <ol> <li id="fn-1">&#8220;Interview with Dr. Harry Sharp,&#8221; 1935, Box 12, Folder 2, <a href="http://www.oac.cdlib.org/findaid/ark:/13030/tf2h4n98gb/entire_text/">E. S. Gosney Papers And Records Of The Human Betterment Foundation</a>, Archives, California Institute of Technology. <a class="reversefootnote" title="return to article" href="#fnref-1"> ↩</a></li> <li id="fn-2">William M. Kantor, &#8220;<a href="https://scholar.google.com/scholar?hl=en&amp;q=William+M.+Kantor%2C+%E2%80%9CBeginnings+of+Sterilization+in+America%2C%E2%80%9D+J+Hered+28%2C+no.+11+%28November+1%2C+1937%29&amp;btnG=&amp;as_sdt=1%2C5&amp;as_sdtp=">Beginnings of Sterilization in America</a>,&#8221; <a href="https://academic.oup.com/jhered">J Hered</a> 28, no. 11 (November 1, 1937): 374. <a class="reversefootnote" title="return to article" href="#fnref-2"> ↩</a></li> <li id="fn-3"><a href="https://books.google.com/books?id=Pf_zAAAAMAAJ">The Journal of Heredity, vol. X, 1</a> (American Genetic Association, 1919). <a class="reversefootnote" title="return to article" href="#fnref-3"> ↩</a></li> <li id="fn-4">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-4"> ↩</a></li> <li id="fn-5">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-5"> ↩</a></li> <li id="fn-6">William M. Kantor, &#8220;Beginnings of Sterilization in America,&#8221; 374. <a class="reversefootnote" title="return to article" href="#fnref-6"> ↩</a></li> <li id="fn-7">Harry C. Sharp, &#8220;<a href="http://www.worldcat.org/title/severing-of-the-vasa-deferentia-and-its-relation-to-the-neuropsychopathic-constitution/oclc/32339643">The Severing of the Vasa Deferentia and Its Relation to the Neuropsychopathic Constitution</a>,&#8221; New York Medical Journal 75 (1902): 412–13. Also available as <a href="http://readingroom.law.gsu.edu/buckvbell/4">Buck v Bell Documents. Paper 4.</a> <a class="reversefootnote" title="return to article" href="#fnref-7"> ↩</a></li> <li id="fn-8">Ibid., 413. <a class="reversefootnote" title="return to article" href="#fnref-8"> ↩</a></li> <li id="fn-9">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-9"> ↩</a></li> <li id="fn-10">Ibid., 414. <a class="reversefootnote" title="return to article" href="#fnref-10"> ↩</a></li> <li id="fn-11">&#8220;Interview with Dr. Harry Sharp.&#8221; <a class="reversefootnote" title="return to article" href="#fnref-11"> ↩</a></li> <li id="fn-12">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-12"> ↩</a></li> <li id="fn-13">Kantor, &#8220;Beginnings of Sterilization in America,&#8221; 374. <a class="reversefootnote" title="return to article" href="#fnref-13"> ↩</a></li> <li id="fn-14">&#8220;Interview with Dr. Harry Sharp.&#8221; <a class="reversefootnote" title="return to article" href="#fnref-14"> ↩</a></li> <li id="fn-15">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-15"> ↩</a></li> <li id="fn-16">&#8220;Interview with Dr. Harry Sharp&#8221;; Kantor, &#8220;Beginnings of Sterilization in America,&#8221; 374. <a class="reversefootnote" title="return to article" href="#fnref-16"> ↩</a></li> <li id="fn-17">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-17"> ↩</a></li> <li id="fn-18">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-18"> ↩</a></li> <li id="fn-19">&#8220;Interview with Dr. Harry Sharp.&#8221; <a class="reversefootnote" title="return to article" href="#fnref-19"> ↩</a></li> <li id="fn-20">Kantor, &#8220;Beginnings of Sterilization in America,&#8221; 374. <a class="reversefootnote" title="return to article" href="#fnref-20"> ↩</a></li> <li id="fn-21">&#8220;Interview with Dr. Harry Sharp&#8221;; Kantor, &#8220;Beginnings of Sterilization in America,&#8221; 374. <a class="reversefootnote" title="return to article" href="#fnref-21"> ↩</a></li> <li id="fn-22">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-22"> ↩</a></li> <li id="fn-23">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-23"> ↩</a></li> <li id="fn-24">Kantor, &#8220;Beginnings of Sterilization in America,&#8221; 374. <a class="reversefootnote" title="return to article" href="#fnref-24"> ↩</a></li> <li id="fn-25">Ibid., 374–75. <a class="reversefootnote" title="return to article" href="#fnref-25"> ↩</a></li> <li id="fn-26">Ibid. <a class="reversefootnote" title="return to article" href="#fnref-26"> ↩</a></li> </ol> </div> "Fake news, libel, and press protections against executive power" https://inpropriapersona.com/articles/fake-news-libel-press-protections-executive-power/ Mon, 23 Jan 2017 18:30:16 +0000 3e56ed011fa202be59af8731f18b477b <p>The press serves an important role in checking executive power in the American system. Two cases, both involving <em>The New York Times,</em> are illustrative &#8212; and, since both involve the Constitution, neither can be changed by either executive orders or congressional lawmaking.</p> <p>The first article in this series deals with libel suits against newspapers; the second will cover <a href="https://inpropriapersona.com/publishing-leaked-materials-pentagon-papers-case/">the publication of leaked materials</a> (the so-called &#8220;<a href="http://www.nytimes.com/2011/06/08/us/08pentagon.html">Pentagon Papers</a>&#8220;).</p> <blockquote><p>Recognizing the occasional tyrannies of governing majorities, [those who won our independence] amended the Constitution so that <a href="https://inpropriapersona.com/what-is-the-first-amendment/">free speech and assembly should be guaranteed</a>. &#8212; Justice Brandeis, <a href="https://www.courtlistener.com/opinion/101097/whitney-v-california/">Whitney v. California</a>, 274 U.S. 357, 375 (1927)</p></blockquote> <aside> <em>Note: If you are involved in reporting news, I recommend you start with the <a href="https://www.rcfp.org/browse-legal-resources/guides">Legal Resource Guides</a> provided by the <a href="https://www.rcfp.org/">Reporters Committee for Freedom of the Press</a>. Consulting an attorney licensed in your jurisdiction is also a good idea, too.</em><br /> </aside> <h3><em><a href="https://www.courtlistener.com/opinion/106761/new-york-times-co-v-sullivan/">New York Times Co. v. Sullivan</a></em>, 376 U.S. 254 (1964)</h3> <p>This case arose out of the civil-rights movements of the 1960s. The plaintiff, an Alabama public official named L.B. Sullivan, sued for <a href="http://www.npr.org/2016/03/24/471762310/donald-trump-wants-to-open-up-libel-laws-so-he-can-sue-news-outlets">libel</a>, claiming that an advertisement in the <em>New York Times</em> falsely defamed him. He won a half-million dollar judgment in state court after proving that the advertisement was both false and damaging to his reputation.</p> <p>Unfortunately for Sullivan &#8212; and for other public officials like, for example, a president of the United States &#8212; a unanimous Supreme Court overturned the Louisiana decision, holding that &#8220;the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.&#8221;</p> <p>Critics, including those in the press, may write and publish material harmful to the reputation of public officials even if that material is false &#8212; unless the public official suing can prove “actual malice,&#8221;  &#8220;that is, [it was published] with knowledge that it was false or with reckless disregard of whether it was false or not.&#8221; (Note that the test for &#8220;actual malice&#8221; is about knowledge and recklessness, <em>not</em> ill will or bad intent.)</p> <h4>&#8220;Official conduct&#8221;</h4> <p>Although <em>Sullivan</em> applied only to &#8220;official conduct&#8221; by &#8220;public officials,&#8221; a unanimous Supreme Court almost immediately expanded the protections against libel to cover arguably private conduct. <em><a href="https://www.courtlistener.com/opinion/106935/garrison-v-louisiana/">Garrison v. Louisiana</a></em>, 379 U.S. 64, 77 (1964), held:</p> <blockquote><p>[A]ny criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. &#8230; The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant.</p></blockquote> <p>For the Court, this clearly included such things as &#8220;dishonesty, malfeasance, or improper motivation,&#8221; even if the accusation was for conduct before a person became a public official or for conduct outside of their official duties.</p> <h4>&#8220;Fake news&#8221; and &#8220;calculated falsehoods&#8221;</h4> <p>Whether &#8220;fake news&#8221; is subject to this special protection depends on what is meant by &#8220;<a href="https://www.theguardian.com/media/2016/dec/18/what-is-fake-news-pizzagate">fake news</a>.&#8221; In <em>Garrison</em>, 379 U.S. at 75, the Court excluded &#8220;calculated falsehood[s]&#8221; that are “knowingly and deliberately published” from any special protection:</p> <blockquote><p>At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool &#8230; For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.</p></blockquote> <p>Thus, at least one kind of &#8220;fake news&#8221; &#8212; the &#8220;deliberate or reckless falsehood,&#8221; perhaps even especially when directed to political ends &#8212; is subject to the full force of <a href="http://www.rcfp.org/digital-journalists-legal-guide/libel">libel laws</a> (but also remember that sometimes &#8220;fake news&#8221; is actually <a href="http://www.rcfp.org/digital-journalists-legal-guide/libel">satire or parody</a>).</p> <h4>Conclusion</h4> <p><em>New York Times v. Sullivan, </em>and the cases that extend its doctrine to more kinds of public figures and to conduct that is not, strictly speaking, &#8220;official,&#8221; provides a powerful shield for media faced with a president hostile to journalism.</p> <p>However, it also makes lawsuits against some kinds of so-called &#8220;fake news&#8221; more difficult, even if the Court has expressed disapproval of &#8220;calculated falsehood&#8221; intended to interfere with legitimate democratic governance.</p> <p>Finally, while the constitutional basis of <em>Sullivan</em> and <em>Garrison</em> make it hard for the executive (president) and legislative (Congress) branches to change them, there remains one mechanism: a change of the makeup of the Supreme Court, which is currently (as of the beginning of 2017) missing one member.</p> "“Baloney Detection” in the era of “fake news”" https://inpropriapersona.com/articles/baloney-detection-era-fake-news/ Thu, 19 Jan 2017 21:12:46 +0000 f763ddaf021769926b03299df332e900 <p>Much has been written recently about the explosion of so-called &#8220;<a href="https://www.theguardian.com/media/2016/dec/18/what-is-fake-news-pizzagate">fake news</a>&#8221; &#8212; much of which is, unlike real fake news such as that generated by <a href="http://www.theonion.com/">the Onion</a> or <a href="http://www.newyorker.com/humor/borowitz-report">Andy Borowitz</a> &#8212; falls somewhere on the spectrum between &#8220;snake-oil&#8221; pieces that generate income via advertising (&#8220;clickbait&#8221;), to shrill scare pieces about the evil doings (e.g., vaccines cause autism), to full-out political propaganda by politicians or their supporters.</p> <p>In attempting to help my students (and extended family) recognize these categories more responsibly &#8212; preferably <em>before</em> they share them &#8212; I think it&#8217;s useful to remember Carl Sagan&#8217;s chapter on <a href="http://amzn.to/2jEfsn0">&#8220;The Fine Art of Baloney Detection&#8221;</a> from 1996. His beginning point included the following &#8220;tools,&#8221; paraphrased below (I have bolded key elements that I think are particularly a problem in 2017):</p> <ul> <li>Look for independent confirmation of the &#8220;<strong>facts</strong>&#8220;</li> <li>Encourage substantive debate on the <strong>evidence</strong> by <strong>knowledgable</strong> people</li> <li>Arguments from authority carry little weight &#8212; but <strong>experts</strong> are not just about authority alone and deserve consideration</li> <li>Consider multiple hypotheses do not get overly attached to any of them (i.e., be careful of <strong>confirmation bias</strong>)</li> <li>Quantify, if possible &#8212; qualitative truths are also real, but are much more challenging (but worthwhile) to asses</li> <li>&#8220;Occam&#8217;s Razor&#8221; &#8212; in general, go with the simpler hypothesis as it is more likely to be right</li> <li>Ask if the hypothesis can be falsified &#8212; that is, can one seek evidence, at least in theory, to disprove something?</li> <li>Experimentation, evidence, and data collection are key to seeking truth</li> </ul> <a href="https://www.amazon.com/Demon-Haunted-World-Science-Candle-Dark/dp/0345409469?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0345409469" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/51-5vZGntnL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/51-5vZGntnL.jpg" alt="The Demon-Haunted World: Science as a Candle in the Dark" /> </a> <p>Sagan also runs through the more common logical fallacies, such as:</p> <ul> <li>Attacking the arguer and not the argument (<em>ad hominem</em>)</li> <li>Arguing from authority alone</li> <li>Arguing that, because bad things might/will happen if something is true, that therefore it cannot be true</li> <li>Claiming that what has not been proven false must be true</li> <li>Appealing to unknowable truths (like, &#8220;God moves in mysterious ways&#8221;)</li> <li>Assuming the answer/begging the question, which typically involves a confusion between causation and correlation</li> <li>Selective observation, also known as &#8220;cherry picking&#8221; &#8212; just ignore facts that contradict your belief, or put yourself in a &#8220;<strong>bubble</strong>&#8221; that only supports your views</li> <li>Using small numbers to make big claims, or otherwise torturing statistics to get what you want</li> <li>General inconsistency of approach, like investing huge amounts to combat certain dangers (shoe bombs) while ignoring others</li> <li>Assuming a result follows when it does not, either logically or possibly because of a lack of evidence</li> <li>Confusing correlation with causation &#8212; just because on thing comes before another does not mean it caused it (but it often suggests further research)</li> <li>Asking meaningless questions that are only interesting rhetorically, but have no real-world existence</li> <li>Considering only two, often extreme positions &#8212; often part of a &#8220;straw-man&#8221; argument or a false dichotomy</li> <li>Focusing on short-term ends without considering long-term consequences (consider global climate change)</li> <li>Slippery slope &#8212; if we do this thing, all this other stuff will happen next (think of same-sex marriage)</li> <li>Straw-man arguments, otherwise known as inventing an opponent and giving them absurd positions just so you can &#8220;win&#8221; an argument</li> <li>Suppressing contrary evidence or telling only half the truth</li> <li>Dancing around issues with rhetorical tricks and language (&#8220;think of the children!&#8221;)</li> </ul> <p>There are many, many more, and all deserve more examples, particularly in today&#8217;s media climate. The whole book is worth reading</p> <p>&nbsp;</p> "E. S. Gosney Papers and Records of the Human Betterment Foundation" https://inpropriapersona.com/articles/e-s-gosney-papers-records-human-betterment-foundation/ Thu, 06 Oct 2016 00:22:11 +0000 48e2f5b109f28301eb613350dda27bc9 <p>As part of my dissertation on privacy and technology, I&#8217;m looking into sterilization in the early part of the twentieth century. Many of the patients (men and women) were vulnerable, many were institutionalized, and often the extent of their consent is debatable. Others sought sterilization and appreciated the procedure. Many had families who seem to have consented on their behalf.</p> <p>The <a href="http://www.oac.cdlib.org/findaid/ark:/13030/tf2h4n98gb/entire_text/">E. S. Gosney Papers and Records of the Human Betterment Foundation</a> have a number of archival records capturing information about these patients, especially those who were institutionalized. The <a href="https://embryo.asu.edu/pages/human-betterment-foundation-1928-1942">HBF</a> was concerned particularly with eugenics, a now-discredited scientific view that those with problematic genetics (as identified by the science of the time, and including mental disorders, limited intellectual capacity, epilepsy, and more) should be discouraged or prevented from reproducing.</p> <p>Sorting through the records and identifying trends is time-consuming. One approach I&#8217;ve been experimenting with is taking the digital images I have of many of the records and looking for interrelationships between them. To do this kind of textual analysis first requires either manual retyping or the use of optical character recognition (OCR). OCR is much easier and more effective at handling large volumes of material, and I&#8217;m trying out <a href="http://ocrsdk.com/">ABBYY&#8217;s Cloud OCR SDK</a> to see how effective it is at batch processing these materials.</p> "Privacy, autonomy, and birth control in America, 1860-1900" https://inpropriapersona.com/articles/privacy-autonomy-birth-control-america-1860-1900/ Tue, 03 May 2016 15:37:09 +0000 8b59783d57b9e79646bc6942e3be31f7 <p>Access to birth control became, controversially, protected by the &#8220;right to privacy&#8221; in 1965;<sup id="fnref-7085-1A"><a href="#fn-7085-1A" class="jetpack-footnote">1</a></sup> a hundred years before, &#8220;procreation was a matter of public concern.&#8221;<sup id="fnref-7085-1B"><a href="#fn-7085-1B" class="jetpack-footnote">2</a></sup> Yet, contradictorily and confusingly, Victorian women &#8212; and their bodies &#8212; were protected (and limited) by a powerful social division between private and public spheres.</p> <a href="https://www.amazon.com/Great-American-Housewife-1776-1986-Contributions-ebook/dp/B000V759KI?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=B000V759KI" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/519463eDVuL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/519463eDVuL.jpg" alt="The Great American Housewife: From Helpmate to Wage Earner, 1776-1986 (Contributions in Women's Studies)" /> </a> <h3>Birth rates drop in the 19th century</h3> <p>Women seeking to control their own fertility was not a new phenomenon in the nineteenth century, but it appears that it took economic arguments about population growth &#8212; like those of <a href="https://en.wikipedia.org/wiki/Thomas_Robert_Malthus">Thomas Malthus</a> in 1803 &#8212; to propel information about such measures into print.<sup id="fnref-7085-1"><a href="#fn-7085-1" class="jetpack-footnote">3</a></sup></p> <p>Additionally, nineteenth-century medical science finally developed a recognizably modern explanation of reproduction, fertility, and fetal development,<sup id="fnref-7085-2"><a href="#fn-7085-2" class="jetpack-footnote">4</a></sup> though such knowledge neither immediately found its way to the public at large nor resulted in immediate improvements to birth-control techniques. Still, knowledge of &#8220;[p]rophylactic skins for men and sponges for women,&#8221; amongst other approaches like <em>coitus interruptus</em> and, for the proper lady of the time, abstinence (a delicate matter when husbands were expected to be virile and sexually demanding).<sup id="fnref-7085-3"><a href="#fn-7085-3" class="jetpack-footnote">5</a></sup></p> <p>Whatever the challenges for women of the time in controlling her own fertility, the American birth rate dropped from its height in 1800, to half that in 1870 (at least for a middle-class white woman) &#8212; and would halve again by 1930.<sup id="fnref-7085-4"><a href="#fn-7085-4" class="jetpack-footnote">6</a></sup></p> <p>In America, the influx of new immigrants after the Civil War drove anxieties about controlling the &#8220;problem-makers of society, those who did not blend in as good servants or factory workers.&#8221;<sup id="fnref-7085-5"><a href="#fn-7085-5" class="jetpack-footnote">7</a></sup> At the same time, concerns about the &#8220;slowdown in the birth rate&#8221; of &#8220;middle-class white wom[e]n&#8221; grew, contributing to lawmakers attempting to inhibit the distribution of birth-control information.<sup id="fnref-7085-6"><a href="#fn-7085-6" class="jetpack-footnote">8</a></sup></p> <h3>Crossing the public/private boundary</h3> <p>Procreation was an area that crossed the boundaries of Victorian society. Women received highest level of privacy protection, being intimately (in the ideal mythology, if not in the messy class and race-influenced reality) bound to the home and the sacred domestic sphere. Simultaneously, however, a woman&#8217;s control over herself and her body &#8212; especially procreation &#8212; was subject to both her husband and to the public sphere more generally:</p> <blockquote><p> A woman&#8217;s body was both a private and a national commodity. If she took steps to control her fertility she entered into the public domain and came into conflict with laws governed by public interest. If she interfered with her husband&#8217;s right to her body, she offended him as a man and a potential father.<sup id="fnref-7085-7"><a href="#fn-7085-7" class="jetpack-footnote">9</a></sup> </p></blockquote> <p>Put in different terms, a woman&#8217;s <em>informational privacy</em> in Victorian America was carefully guarded; invasions of this &#8220;right to privacy&#8221; formed the rhetorical basis of Warren and Brandeis&#8217; critical 1890 law-review article of the same name. On the other hand, her autonomy &#8212; the kind of privacy protected by <em>Griswold</em> and then <em>Roe v. Wade</em> &#8212; was severely restricted, typically being given over to male figures, or ignored entirely, depending on circumstances, class, and race.</p> <h4>What about the menz?</h4> <p>Men, who operated in the public sphere of work and politics, received fewer protections for their informational privacy, but through decisions like those that led to <em><a href="https://inpropriapersona.com/freedom-to-contract-at-the-end-of-the-nineteenth-century/">Lochner v. New York</a></em>, received relatively high levels of protection of their autonomy and liberty (not always to their benefit).<sup id="fnref-7085-8"><a href="#fn-7085-8" class="jetpack-footnote">10</a></sup></p> <p>Furthermore, the sacred space of the domestic sphere, supposedly the domain of women, was also granted the highest protections from all forms of outside interference. As a result, whatever the rhetoric and mythology of Victorian domesticity, a <a href="https://inpropriapersona.com/privacy-hides-histories-of-abuse/">husband who abused his wife</a> within &#8220;their&#8221; home was protected by legal and social conceptions of privacy. His wife could only rely on privacy to help hide her sense of shame.</p> <h4>Procreation and the public welfare</h4> <p>Procreation affected women more than men, as &#8220;the risks of childbirth and the burdens of motherhood&#8221; demonstrated.<sup id="fnref-7085-9"><a href="#fn-7085-9" class="jetpack-footnote">11</a></sup> But whatever sympathy women received from &#8220;doctors, preachers, lawyers, and even most novelists&#8221; was limited in the face of &#8220;the public duty to reproduce&#8221;: &#8220;In the public eye, a woman who refused to give birth was like a man who refused to defend his country.&#8221;<sup id="fnref-7085-10"><a href="#fn-7085-10" class="jetpack-footnote">12</a></sup></p> <p>Furthermore, &#8220;birth control as an issue fell into the male domain.&#8221; That is, the husband was considered to control procreation and birth control any methods of birth control, not the wife &#8212; women were reduced to &#8220;advocat[ing] male chastity,&#8221; claiming ill health, retreating to separate bedrooms, or otherwise seeking abstinance-based methods.<sup id="fnref-7085-10A"><a href="#fn-7085-10A" class="jetpack-footnote">13</a></sup></p> <p>However sacred and inviolate the domestic sphere ought to be, given the prevailing view of the home as the seat of privacy and liberty, opponents of birth control nonetheless &#8220;intruded into the privacy of the bedroom.&#8221; Ogen suggests a similarity to the late twentieth century: &#8220;The voices raised against birth control,&#8221; she writes, &#8220;had much in common with those crying out against abortion today.&#8221; Even as sexual reproduction became understood scientifically and medically, &#8220;the distinction between sperm and fetus was nevertheless deliberately blurred so that &#8230; the use of contraceptives could therefore be called abortion.&#8221;<sup id="fnref-7085-11"><a href="#fn-7085-11" class="jetpack-footnote">14</a></sup></p> <h3>Eugenics and the 20th century</h3> <p>The pro-procreation message was aimed at upper- and middle-class white women. The procreation of other races, ethnicities, and classes was considered a threat and limiting conception a potential solution.<sup id="fnref-7085-12"><a href="#fn-7085-12" class="jetpack-footnote">15</a></sup></p> <p>And as medical science delivered both methods for permanent sterilization and data-driven justifications for it, eugenics-based arguments that emerged in the early twentieth century rarely granted full choice to those they targeted, male or female. <a href="https://inpropriapersona.com/eugenic-sterilization-california/">Compulsory, or at least coerced, sterilizations</a> opened a whole new chapter in the birth-control debate in both the social and legal realms.</p> <a href="https://www.amazon.com/Choice-Coercion-Sterilization-Abortion-American-ebook/dp/B0075BBN9E?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=B0075BBN9E" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/5110XpDpgwL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/5110XpDpgwL.jpg" alt="Choice and Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare (Gender and American Culture)" /> </a> <p>But regardless of class or other considerations, such matters were generally not considered part of the private sphere of women, at least in terms of autonomous and independent decision-making or control &#8212; despite the efforts of advocates like Margaret Sanger.<sup id="fnref-7085-13"><a href="#fn-7085-13" class="jetpack-footnote">16</a></sup></p> <p><em>Griswold</em> in 1965 and <em>Roe</em> in 1973 marked a distinct shift in the law, but the continued controversies around both contraception and abortion suggest that American society has not yet settled the question of privacy, autonomy, and control over one&#8217;s own body, particularly when women are involved.</p> <div class="footnotes"> <hr /> <ol> <li id="fn-7085-1A"> <em><a href="https://www.courtlistener.com/opinion/107082/griswold-v-connecticut/">Griswold v. Connecticut</a></em>, 381 U.S. 479 (1965).&#160;<a href="#fnref-7085-1A">&#8617;</a> </li> <li id="fn-7085-1B"> Annegret S. Ogden, <em>The Great American Housewife: From Helpmate to Wage Earner, 1776-1986,</em> Contributions in Women’s Studies, no. 61 (Westport, Conn: Greenwood Press, 1986): 81.&#160;<a href="#fnref-7085-1B">&#8617;</a> </li> <li id="fn-7085-1"> Ibid., 81-82.&#160;<a href="#fnref-7085-1">&#8617;</a> </li> <li id="fn-7085-2"> Ibid., 82.&#160;<a href="#fnref-7085-2">&#8617;</a> </li> <li id="fn-7085-3"> Ibid., 79, 82.&#160;<a href="#fnref-7085-3">&#8617;</a> </li> <li id="fn-7085-4"> Ibid., 83.&#160;<a href="#fnref-7085-4">&#8617;</a> </li> <li id="fn-7085-5"> Ibid., 82.&#160;<a href="#fnref-7085-5">&#8617;</a> </li> <li id="fn-7085-6"> Ibid., 83. For more on the development of the &#8220;Comstock Laws&#8221; see, for example, Molly McGarry, &#8220;<a href="http://muse.jhu.edu/article/17307">Spectral Sexualities</a>: Nineteenth-Century Spiritualism, Moral Panics, and the Making of U.S. Obscenity Law,&#8221; <em>Journal of Women&#8217;s History</em> 12, no. 2 (2000): 8-29.&#160;<a href="#fnref-7085-6">&#8617;</a> </li> <li id="fn-7085-7"> Ibid., 81.&#160;<a href="#fnref-7085-7">&#8617;</a> </li> <li id="fn-7085-8"> Class and race complicated the picture. Wealthy, upper-class men unsurprisingly possessed the highest levels of both informational privacy and autonomy, though &#8220;public figures&#8221; (like politicians, in particular) lost some of their privacy protections, even if they gained other kinds of power.&#160;<a href="#fnref-7085-8">&#8617;</a> </li> <li id="fn-7085-9"> Ibid., 83. But note that mortality rates for men and women of the day, especially in relation to industrial machinery and factories, was extremely high. The &#8220;public sphere&#8221; was a dangerous place and <a href="https://inpropriapersona.com/women-public-health-police-power/">women would be the first to receive protections</a>.&#160;<a href="#fnref-7085-9">&#8617;</a> </li> <li id="fn-7085-10"> Ibid.&#160;<a href="#fnref-7085-10">&#8617;</a> </li> <li id="fn-7085-10A"> Ibid.&#160;<a href="#fnref-7085-10A">&#8617;</a> </li> <li id="fn-7085-11"> Ibid. Note that abortion prior to the nineteenth century was considered acceptable, even by the clergy, until &#8220;quickening&#8221; &#8212; the first felt movements of the child that demonstrated life had actually begun. See also the arguments about &#8220;abortifacients&#8221; in <em>[Burwell v. Hobby Lobby Stores] (https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/)</em>, 134 S. Ct. 2751 (2014).&#160;<a href="#fnref-7085-11">&#8617;</a> </li> <li id="fn-7085-12"> Ogden, <em>The Great American Housewife</em>, 82.&#160;<a href="#fnref-7085-12">&#8617;</a> </li> <li id="fn-7085-13"> Johanna Schoen, <em>Choice &amp; Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare, Gender and American Culture</em> (Chapel Hill: University of North Carolina Press, 2005): 22.&#160;<a href="#fnref-7085-13">&#8617;</a> </li> </ol> </div> "Victorian domestic specialization and gender roles" https://inpropriapersona.com/articles/victorian-americans-hyperspecialized-gender-roles/ Mon, 02 May 2016 18:10:48 +0000 a4a33d1bd138c24f72221b8c63fb7ea8 <p>In a response to the common fact that young mothers so often died &#8212; through disease but especially in childbirth &#8212; the Victorians developed &#8220;what amounted to a dead-mother cult.&#8221;<sup id="fnref-7073-1"><a href="#fn-7073-1">1</a></sup> Though the scale of death of mothers was not radically different than in prior centuries, the impact on Victorian families appears to have been greater than in previous generations, due to factors like the hyper-specialization of gender roles and the lack of community cohesiveness combined with reduced numbers of extended-family connections in an increasingly mobile and urbanizing American society.</p> <aside class="image"><a href="http://www.amazon.com/Great-American-Housewife-1776-1986-Contributions/dp/0313247528/ref=as_li_ss_il?ie=UTF8&#038;ref_=nav_custrec_signin&#038;linkCode=li3&#038;tag=commentinprop-20&#038;linkId=e71a0715c0ac9c31a67bf90580d435b8" target="_blank"><img border="0" src="https:/https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&#038;ASIN=0313247528&#038;Format=_SL250_&#038;ID=AsinImage&#038;MarketPlace=US&#038;ServiceVersion=20070822&#038;WS=1&#038;tag=commentinprop-20" ></a><img src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&#038;l=li3&#038;o=1&#038;a=0313247528" width="1" height="1" border="0" alt="" style="border:none !important; margin:0px !important;" /></aside> <p>That is, husbands worked outside the home, while wives managed all household duties. Such an arrangement departed from the mixed roles of earlier generations. Families running small farms in rural areas, especially ones focused on subsistence agriculture typically put everyone to work without overspecialization based on gender. Similarly, earlier businesses in more urbanized areas were typically home-based, with both husbands and wives collaborating on business matters.<sup id="fnref-7073-2"><a href="#fn-7073-2">2</a></sup> &#8220;The home,&#8221; writes Ogden, &#8220;became a sanctuary, a sharp contrast with the [earlier] notions of home as service cooperate or display case.&#8221;<sup id="fnref-7073-2A"><a href="#fn-7073-2A">3</a></sup></p> <p>Meanwhile, the American landscape was becoming increasingly industrialized and urbanized after the Civil War. Individuals and families moved seeking work; kinship and friend-based networks became stretched and thin as a result.<sup id="fnref-7073-3"><a href="#fn-7073-3">4</a></sup> The telegraph and railroads did more to enable this movement and disruption, even if they, along with the increasingly sophisticated postal system, enabled more effective long-distance relationships.</p> <p>As the Victorian version of separate spheres solidified in the mid-nineteenth century, the &#8220;idea of wifely sainthood gained ever more credence as housewives found themselves increasingly isolated from the male-operated world.&#8221;<sup id="fnref-7073-4"><a href="#fn-7073-4">5</a></sup> This &#8220;cult of domesticity,&#8221; reinforced by the sanctification of dead mothers, became particularly important to women of the time as they realized that &#8220;wife- and motherhood represented their last remaining stronghold over men.&#8221;<sup id="fnref-7073-5"><a href="#fn-7073-5">6</a></sup></p> <p>This American Victorian version of the public/private distinction thus developed in the late nineteenth century in reaction to a society altered by social and techno-industrial changes. The deepening division between male and female spheres, and especially the sanctification of the domestic home, connected to already existing and deep-rooted conceptions in American law, roots that precede the founding of the country, in fact. But this newer, stricter division, and its sacred family home, did not end with Queen Victoria: perhaps ironically, it became foundational for the twentieth century&#8217;s &#8220;right to privacy&#8221; as expressed in <em>Griswold</em> and <em>Roe</em>, for example.</p> <div class="footnotes"> <hr /> <ol> <li id="fn-7073-1"> Annegret S. Ogden, <em><a href="http://www.amazon.com/Great-American-Housewife-1776-1986-Contributions/dp/0313247528/ref=as_li_ss_tl?ie=UTF8&amp;ref_=nav_custrec_signin&amp;linkCode=ll1&amp;tag=commentinprop-20&amp;linkId=222a5ea0b41bf09669d4a3b241092fa3">The Great American Housewife: From Helpmate to Wage Earner, 1776-1986</a>,</em> Contributions in Women’s Studies, no. 61 (Westport, Conn: Greenwood Press, 1986): 65.&#160;<a href="#fnref-7073-1">&#8617;</a> </li> <li id="fn-7073-2"> Note that I am not claiming a lack of gender distinctions or specialization in past eras, only contrasting the mixing of roles and activities before the Victorian era with the rigid hierarchy established by the Victorians (which itself was never rigidly maintained, particularly once race and class are considered).&#160;<a href="#fnref-7073-2">&#8617;</a> </li> <li id="fn-7073-2A"> Ogden, <em>The Great American Housewife,</em> 67.&#160;<a href="#fnref-7073-2A">&#8617;</a> </li> <li id="fn-7073-3"> Immigration and colonial history also contributed to a less-connected society as compared to the deep history connecting individuals and families to each other in their original homes in Africa, Asia, Europe, and the rest of the Americas.&#160;<a href="#fnref-7073-3">&#8617;</a> </li> <li id="fn-7073-4"> Ogden, <em>The Great American Housewife,</em> 65.&#160;<a href="#fnref-7073-4">&#8617;</a> </li> <li id="fn-7073-5"> Ibid., 66.&#160;<a href="#fnref-7073-5">&#8617;</a> </li> </ol> </div> "Justice Scalia on the Constitution, privacy, and criminality" https://inpropriapersona.com/articles/justice-scalia-constitution-privacy-criminality/ Fri, 22 Apr 2016 19:45:25 +0000 8f43cfe265fc6f7e385ba2c6bf7681bc <p>A nice little &#8220;inkling&#8221; from the <em><a href="https://law.resource.org/pub/us/code/blue/IndigoBook.html">Indigo Book</a></em>, a public-domain implementation of U.S. legal citation standards (of note: the <em>Indigo Book</em> emerged <a href="https://www.techdirt.com/articles/20160420/17072634229/public-domain-citation-book-baby-blue-renamed-to-indigo-book-following-harvard-law-review-threats.shtml">despite threats from the Harvard Law Review</a>, publishers of that other standard work on the topic):</p> <blockquote><p> Justice Scalia once noted that &#8220;the Constitution sometimes<br /> insulates the criminality of a few in order to protect the privacy of us all,&#8221; <em>Arizona v. Hicks</em>, 480 U.S. 321, 329 (1987); <em>see also Maryland v. King</em>, 133 S. Ct. 1958, 1989 (2013) (Scalia, J., dissenting) (&#8220;Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.&#8221;), and later applied that principle to limit police use of thermal imaging technology, <em>see Kyllo v. United States</em>, 389 U.S. 27 (2001); <em>cf. United States v. Jones</em>, 132 S. Ct. 945 (2012) (invalidating use of a GPS tracking device for long-term surveillance).<sup id="fnref-7068-1"><a href="#fn-7068-1">1</a></sup> </p></blockquote> <p>I enjoy finding little gems like this in potentially dry reference works, and congratulate the team behind the <em>Indigo Book.</em></p> <div class="footnotes"> <hr /> <ol> <li id="fn-7068-1"> Sprigman et al., <em>The Indigo Book: A Manual of Legal Citation,</em> Public Resource (2016).&#160;<a href="#fnref-7068-1">&#8617;</a> </li> </ol> </div> "Prohibition and the domestic home" https://inpropriapersona.com/articles/prohibition-domestic-home/ Fri, 22 Apr 2016 17:58:06 +0000 73c7e95c93657d1108c11f74f08eb2f0 <p>The domestic home has consistently been a key source of privacy protections in American law. From the old maxim that &#8220;<a href="https://en.wiktionary.org/wiki/a_man%27s_home_is_his_castle">a man&#8217;s home is his castle</a>&#8221; to Justice Scalia&#8217;s opinion in <em><a href="https://www.courtlistener.com/opinion/118443/kyllo-v-united-states/">Kyllo</a></em> that warrantless use of thermal-imaging devices aimed at private homes violates the Fourth Amendment<sup id="fnref-7060-1"><a href="#fn-7060-1" class="jetpack-footnote">1</a></sup>, the domestic sphere has occupied a special place in American jurisprudence.</p> <p>Even the <a href="http://legisworks.org/congress/66/publaw-66.pdf">National Prohibition Act</a>, otherwise known as the Volstead Act, gave special recognition to domestic spaces:</p> <blockquote><p> No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. The term &#8220;private dwelling&#8221; shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house.<sup id="fnref-7060-2"><a href="#fn-7060-2" class="jetpack-footnote">2</a></sup> </p></blockquote> <p>At least partly as a result of this, bootleggers turned to a new business tool: the telephone. They set up an office that received calls and orders, but kept no paper records &#8212; especially of where the liquor was stored. They stored the liquor itself in &#8220;private dwellings.&#8221; With no written records of sale connecting the two locations, federal agents &#8212; even if they knew liquor was kept there &#8212; struggled to find evidence that the residence was being used as part of the &#8220;unlawful sale&#8221; of banned alcohol, and without that evidence, they could not conduct lawful searches for use in court.<sup id="fnref-7060-3"><a href="#fn-7060-3" class="jetpack-footnote">3</a></sup></p> <p>One solution? <em><a href="https://inpropriapersona.com/?s=wiretaps">Wiretaps</a>.</em></p> <div class="footnotes"> <hr /> <ol> <li id="fn-7060-1"> For example, Justice Scalia emphasized in <em>Kyllo</em>, &#8220;We have said that the Fourth Amendment draws &#8216;a firm line at the entrance to the house.'&#8221; <em><a href="https://www.courtlistener.com/opinion/110235/payton-v-new-york/">Payton v. New York</a>,</em> 445 U.S. 573, 590 (1980).&#160;<a href="#fnref-7060-1">&#8617;</a> </li> <li id="fn-7060-2"> See p. 315 (section 25) of <a href="http://legisworks.org/congress/66/publaw-66.pdf">Public Law 66-66</a>.&#160;<a href="#fnref-7060-2">&#8617;</a> </li> <li id="fn-7060-3"> <em><a href="https://www.courtlistener.com/opinion/98094/weeks-v-united-states/">Weeks v. United States</a></em>, 232 U.S. 383 (1914) had already held that warrantless searches in violation of the Fourth Amendment produced evidence that would be excluded from federal court (but note that it only applied to federal agents and federal courts until <em><a href="https://www.courtlistener.com/opinion/106285/mapp-v-ohio/">Mapp v. Ohio</a></em>, 367 U.S. 643, extended the exclusionary rule to state courts and state actors as well).&#160;<a href="#fnref-7060-3">&#8617;</a> </li> </ol> </div> "Franz Neumann on the importance of history to freedom" https://inpropriapersona.com/articles/franz-neumann-importance-history-freedom/ Fri, 15 Apr 2016 16:19:05 +0000 c520a4bdc46c2559bcaf426b09d1bbaf <p><a href="https://en.wikipedia.org/wiki/Franz_Leopold_Neumann">Franz Neumann</a>, a key political theorist of the mid-twentieth century, on freedom:</p> <blockquote><p> For today, freedom is defined &#8212; as it has been for decades &#8212; as essentially negative-juristic, that is, as absence of coercion &#8230; and &#8220;coercion&#8221; is defined in such a way that the activity of the state alone appears as coercion. The less the state intervenes the greater the freedom, and vice versa. &#8230; [F]undamentally the ideal is that of a society without a state, for the state is the enemy of freedom.<sup id="fnref-6987-1"><a href="#fn-6987-1">1</a></sup> </p></blockquote> <h3>Freedom and the State</h3> <p>Neumann agrees in general with this definition, but adds key qualifications. His core reservations involve the overemphasis on the state as the &#8220;enemy of freedom.&#8221;</p> <h4>Sometimes governments protect freedom</h4> <p>First, a government may actually <em>protect</em> freedom, rather than threaten it:</p> <blockquote><p> I cannot agree that the state is always the enemy of freedom. &#8230; For it is conceivable &#8212; and, thank God, not so rare &#8212; that the state defends freedom, externally and internally.<sup id="fnref-6987-2"><a href="#fn-6987-2">2</a></sup> </p></blockquote> <h4>Private threats to freedom and the majoritarian problem</h4> <p>Second, the state is not the only threat to freedom. Non-governmental actors &#8212; private collections of people, including corporations, religious groups, or perhaps, in a democracy, a simple 51% voting majority &#8212; may also threaten freedom, and who then will protect the freedom of the minority?</p> <blockquote><p> After all, we know from history how frequently and brutally private groups have tried to force their value systems upon a people. How then, then, do minorities find protection? Is it not the proper task of the state &#8212; as the representative of universal interests &#8212; to restore the balance which is engendered by the egoistic interests of private groups?<sup id="fnref-6987-3"><a href="#fn-6987-3">3</a></sup> </p></blockquote> <h4>Necessity to justify state action still key</h4> <p>Despite the threats from private groups, Neumann maintains that freedom from state coercion is thus &#8220;necessary, but not sufficient.&#8221;<sup id="fnref-6987-4"><a href="#fn-6987-4">4</a></sup> It is critical, though, and with the legal presumption in place that government action is always a potential threat, the state must then &#8220;justify its interference with freedom in each case&#8221; in the face of &#8220;a presumption in favor of freedom and against state coercion.&#8221;<sup id="fnref-6987-5"><a href="#fn-6987-5">5</a></sup> (American courts implement this presumption with constitutional and common-law concepts like <a href="http://blogs.findlaw.com/law_and_life/2014/01/challenging-laws-3-levels-of-scrutiny-explained.html">levels of scrutiny</a> and the precedent behind the so-called <a href="https://inpropriapersona.com/salus-populi-suprema-lex/">&#8220;police power&#8221;</a> when analyzing the actions of state and federal governments.)</p> <h3>Freedom requires knowledge</h3> <p>And third, says Neumann more abstractly and philosophically, freedom requires <em>knowledge.</em> To get this knowledge &#8212; to be free to act, in essence &#8212; requires knowledge of &#8220;external nature,&#8221; &#8220;human nature,&#8221; and &#8220;the historical process.&#8221;<sup id="fnref-6987-6"><a href="#fn-6987-6">6</a></sup>. All three kinds of knowledge are necessary for freedom, meaning that &#8220;the natural scientist, the humanist and social scientist, the psychologist thus all have the same rank and the same significance.&#8221;<sup id="fnref-6987-7"><a href="#fn-6987-7">7</a></sup></p> <p>Each kind of knowledge may also be used to restrict freedom (think of the possibilities created by the telephone, or the Internet, to both enable new possibilities for individuals to act <em>and</em> for the state to restrict or surveil). <sup id="fnref-6987-8"><a href="#fn-6987-8">8</a></sup></p> <h4>Historical knowledge</h4> <p>In particular, <em>historical knowledge</em> is necessary to freedom &#8212; in a rather utilitarian and practical sense (although Neumann is leery of allowing in too much utilitarianism because he worries that the state may &#8220;prescribe what it considers useful&#8221; &#8212; consider the battle over funding science/technology and the neglect of the humanities by both political sides &#8212; thus potentially <em>harming</em> freedom<sup id="fnref-6987-9"><a href="#fn-6987-9">9</a></sup>). I say &#8220;utilitarian&#8221; and &#8220;practical&#8221; because Neumann maintains that the utilization of scientific or psychological knowledge for good or for ill depends on the historical situation &#8212; and understanding that situation requires historical knowledge.<sup id="fnref-6987-10"><a href="#fn-6987-10">10</a></sup></p> <p>In other words, history helps us understand the context in which we act and thus to make decisions about how to apply our knowledge of the natural and the human world. Without historical understanding, effective practical decision making becomes difficult or impossible. This is the classic, but frequently ignored, concept that science may build an atomic bomb, but that the humanities provides critical insight into any decision to use it. Ignoring history is thus ignoring critical data; ignoring critical data leads to bad decisions.</p> <h3>In conclusion, inquiry and knowledge are key</h3> <p>As Neumann makes clear, historical knowledge is not privileged over knowledge of the natural or human realms (i.e., biology, computer science, psychology, sociology, political science &#8212; these are all equally key to freedom).</p> <p>But recognizing the value of this knowledge, while, key, must not lie in the hands of state actors, as this risks the state deciding on utility &#8212; and thus threatening (individual) freedom. Only scholars &#8212; as individuals &#8212; can decide what form of scientific/knowledge-seeking inquiry is legitimate if freedom is to be preserved. And only political systems that &#8220;respect[] and enforce[] the civil rights of the individual&#8221; actually &#8220;promote[] scientific inquiry&#8221; (though that has not necessarily been true throughout history).<sup id="fnref-6987-11"><a href="#fn-6987-11">11</a></sup></p> <p>In short, Neumann, a witness (and eventual participant in the Nuremberg trials) to the atrocities of the totalitarian Nazi regime, at one time a socialist (but not Soviet) sympathizer, argues that in the <em>contemporary world</em> at least, freedom requires knowledge, not simply the absence of state coercion.</p> <div class="footnotes"> <hr /> <ol> <li id="fn-6987-1"> Franz L Neumann, &#8220;Intellectual and Political Freedom,&#8221; <em>The Democratic and the Authoritarian State; Essays in Political and Legal Theory.</em> (New York: Free Press, 1964), 201.&#160;<a href="#fnref-6987-1">&#8617;</a> </li> <li id="fn-6987-2"> Ibid.&#160;<a href="#fnref-6987-2">&#8617;</a> </li> <li id="fn-6987-3"> Ibid., 3.&#160;<a href="#fnref-6987-3">&#8617;</a> </li> <li id="fn-6987-4"> Ibid.&#160;<a href="#fnref-6987-4">&#8617;</a> </li> <li id="fn-6987-5"> Ibid.&#160;<a href="#fnref-6987-5">&#8617;</a> </li> <li id="fn-6987-6"> Ibid.&#160;<a href="#fnref-6987-6">&#8617;</a> </li> <li id="fn-6987-7"> Ibid., 203.&#160;<a href="#fnref-6987-7">&#8617;</a> </li> <li id="fn-6987-8"> Ibid., 204-05.&#160;<a href="#fnref-6987-8">&#8617;</a> </li> <li id="fn-6987-9"> Ibid., 206.&#160;<a href="#fnref-6987-9">&#8617;</a> </li> <li id="fn-6987-10"> Ibid., 205-06.&#160;<a href="#fnref-6987-10">&#8617;</a> </li> <li id="fn-6987-11"> Ibid., 206&#160;<a href="#fnref-6987-11">&#8617;</a> </li> </ol> </div> "Eugenic sterilization in California: practicing “good medicine”" https://inpropriapersona.com/articles/eugenic-sterilization-california/ Thu, 14 Apr 2016 17:32:40 +0000 8a3e148b6d03b62f5a0ba760c328ac4a <p>Indiana may have passed the first sterilization law in 1907, but before World War II, it was California that led the nation in eugenic sterilizations. The goal? To &#8220;apply science to social problems&#8221;:<sup id="fnref-6851-1"><a href="#fn-6851-1" class="jetpack-footnote">1</a></sup></p> <blockquote><p> Such legislation was part of a wave of Progressive Era public health activism that encompassed pure food, vaccination, and occupational safety. &#8230; [It] granted the medical superintendents of asylums and prisons the authority to &#8220;asexualize&#8221; a patient or inmate if such action would improve his or her &#8220;physical, mental, or moral condition.&#8221;<sup id="fnref-6851-2"><a href="#fn-6851-2" class="jetpack-footnote">2</a></sup> </p></blockquote> <p>The drive drew deeply on previous struggles around the extent of a state&#8217;s &#8220;<a href="https://inpropriapersona.com/women-public-health-police-power/">police power</a>&#8221; to protect the public welfare, especially around the issue of <a href="https://inpropriapersona.com/vaccination-and-anti-vaccination-at-the-turn-of-the-20th-century/">compulsory vaccination</a>.</p> <p>Thus, the Supreme Court&#8217;s holding in <em><a href="https://www.courtlistener.com/opinion/96230/jacobson-v-massachusetts/">Jacobson v. Massachusetts</a></em>, 197 U.S. 11 (1905) &#8212; in which the Court upheld mandatory smallpox vaccinations in epidemic conditions as a reasonable exercise of the police power &#8212; formed a strong precedent for eugenic sterilizations done for the good of the public. Justice Oliver Wendell Holmes famously made the connection in <em><a href="https://www.courtlistener.com/opinion/101076/buck-v-bell/">Buck v. Bell</a></em>, 274 U.S. 200 (1927) writing:</p> <blockquote><p> It is better for the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.<sup id="fnref-6851-3"><a href="#fn-6851-3" class="jetpack-footnote">3</a></sup> </p></blockquote> <p>In short, sterilization of an individual was justified on the basis of public health and welfare &#8212; the state&#8217;s police power.</p> <aside>Of interest is the use of <em>Jacobson</em> and <em>Buck v. Bell</em> in <em><a href="https://www.courtlistener.com/opinion/108713/roe-v-wade/">Roe v. Wade</a></em>, 410 U.S. 113, 153-54 (1973):</p> <blockquote><p>In fact, it is not clear to us that the claim asserted by some <em>amici</em> that one has an unlimited right to do with one&#8217;s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court&#8217;s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).</p></blockquote> <p>Whether a court today would actually reaffirm <em>Buck v. Bell</em> given the same facts is unlikely &#8212; but in terms of legal precedent, it remains &#8220;good law.&#8221;</p> </aside> <p>Some states applied sterilization measures for punitive reasons (and note that 1942&#8217;s <em><a href="https://www.courtlistener.com/opinion/103701/skinner-v-oklahoma-ex-rel-williamson">Skinner v. Oklahoma</a></em>, 316 U.S. 535 (1942), rejected use of sterilization for only certain kinds of convicted criminals, but did not overturn <em>Buck v. Bell</em>), but California &#8212; emphasizing health over penal rationals &#8212; &#8220;consistently described [sterilization] as a public health strategy that could breed out undesirable defects from the populace and fortify the state as a whole.&#8221;<sup id="fnref-6851-4"><a href="#fn-6851-4" class="jetpack-footnote">4</a></sup></p> <p>California stayed at or near the top of such sterilizations until after World War II. By the 1950s, such activities were dropping in the West, but &#8220;[o]n the basis of a revamped rationale of bad parenthood and population burden, sterilizations increased in the 1950s and 1960s in southern states such as North Carolina and Virginia.&#8221;<sup id="fnref-6851-5"><a href="#fn-6851-5" class="jetpack-footnote">5</a></sup> In the South, and despite <em>Skinner v. Oklahoma,</em> a punitive &#8220;edge&#8221; emerged, focused on punishing those who bore illegitimate children &#8220;or as extortion to ensure ongoing receipt of family assistance.&#8221;<sup id="fnref-6851-6"><a href="#fn-6851-6" class="jetpack-footnote">6</a></sup></p> <p>California &#8220;never explicitly endorsed a punitive model,&#8221; but as worries about &#8220;overpopulation, welfare dependency, and illegitimacy&#8221; combined in the 1960s with a reviling of the &#8220;reproductive tendencies of working-class Mexican-origin women&#8221; and an increasing acceptance of birth control and sterilization &#8212; the last rather ironically driven by feminist arguments for individual autonomy over one&#8217;s own body &#8212; eugenic-like sterilization re-emerged in at least one Los Angeles hospital.<sup id="fnref-6851-7"><a href="#fn-6851-7" class="jetpack-footnote">7</a></sup></p> <p>In 1978, ten women sterilized at Los Angeles&#8217; County General Hospital filed suit, arguing in <em><a href="http://www.nytimes.com/2016/02/01/magazine/when-doctors-took-family-planning-into-their-own-hands.html">Madrigal v. Quilligan</a></em> essentially that they had been sterilized without effective or informed consent, violating their right to bear children<sup id="fnref-6851-8"><a href="#fn-6851-8" class="jetpack-footnote">8</a></sup> (constitutionally at least an aspect of the right to privacy, according to <em><a href="https://www.courtlistener.com/opinion/108713/roe-v-wade/">Roe v. Wade</a></em>, 410 U.S. 113, 152-53, citing <em><a href="https://www.courtlistener.com/opinion/103701/skinner-v-oklahoma-ex-rel-williamson">Skinner</a></em>, 316 U.S. at 541-42).</p> <p>The hospital defense was, in essence, simple:</p> <blockquote><p> Dr. E.J. Quilligan, the head of County Hospital’s obstetrics unit (and a pioneer in lifesaving fetal-monitoring technology) told a reporter, &#8220;We were practicing good medicine.&#8221;<sup id="fnref-6851-8NYT"><a href="#fn-6851-8NYT" class="jetpack-footnote">9</a></sup> </p></blockquote> <p>The women lost their case. The judge found that, in essence, the physicians had acted in good faith and intended no harm. The resentment and anger of the plaintiffs was due to a combination of a &#8220;breakdown in communication&#8221; along with the Mexican-American women&#8217;s &#8220;natural[] inclination towards large families.&#8221;<sup id="fnref-6851-9"><a href="#fn-6851-9" class="jetpack-footnote">10</a></sup></p> <p>Problems persisted, but the case drew attention and oversight, and widespread violations of informed consent in sterilization procedures fell off by the 1980s.<sup id="fnref-6851-10"><a href="#fn-6851-10" class="jetpack-footnote">11</a></sup></p> <aside>The National Research Act, which required doctors to get &#8220;voluntary informed consent&#8221; from the subjects of their experiments, wasn&#8217;t passed until 1974, after the abuses of the &#8220;<a href="http://www.cdc.gov/tuskegee/timeline.htm">Tuskegee Study of Untreated Syphilis in the Negro Male</a>&#8221; were made public.<br /> &#8212; Marcela Valdes, &#8220;<a href="http://www.nytimes.com/2016/02/01/magazine/when-doctors-took-family-planning-into-their-own-hands.html">When Doctors Took &#8216;Family Planning&#8217; Into Their Own Hands</a>.&#8221;</p> </aside> <p>Concurrent with the drop was a marked increase in the requirements overall for proper and effective informed consent for medical procedures, so whether the problem of unwanted sterilizations is traceable to a reduction in racist-driven eugenics-based thinking or an increase in informed-consent requirements (and corresponding victories in other contexts by other kinds of plaintiffs in informed-consent cases) is an open question.</p> <div class="footnotes"> <hr /> <ol> <li id="fn-6851-1"> Alexandra Minna Stern, “<a href="http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2004.041608">Sterilized in the Name of Public Health</a>,” American Journal of Public Health 95, no. 7 (July 1, 2005): 1129.&#160;<a href="#fnref-6851-1">&#8617;</a> </li> <li id="fn-6851-2"> Ibid.&#160;<a href="#fnref-6851-2">&#8617;</a> </li> <li id="fn-6851-3"> <em><a href="https://www.courtlistener.com/opinion/101076/buck-v-bell/">Buck v. Bell</a></em>, 274 US 200 (1927): 207.&#160;<a href="#fnref-6851-3">&#8617;</a> </li> <li id="fn-6851-4"> Stern, &#8220;Sterilized,&#8221; 1130.&#160;<a href="#fnref-6851-4">&#8617;</a> </li> <li id="fn-6851-5"> Ibid., 1132.&#160;<a href="#fnref-6851-5">&#8617;</a> </li> <li id="fn-6851-6"> Ibid.&#160;<a href="#fnref-6851-6">&#8617;</a> </li> <li id="fn-6851-7"> Ibid., 1132-33.&#160;<a href="#fnref-6851-7">&#8617;</a> </li> <li id="fn-6851-8"> Ibid., 1134-35.&#160;<a href="#fnref-6851-8">&#8617;</a> </li> <li id="fn-6851-8NYT"> Marcela Valdes, &#8220;<a href="http://www.nytimes.com/2016/02/01/magazine/when-doctors-took-family-planning-into-their-own-hands.html">When Doctors Took &#8216;Family Planning&#8217; Into Their Own Hands</a>,&#8221; <em>The New York Times,</em> February 1, 2016.&#160;<a href="#fnref-6851-8NYT">&#8617;</a> </li> <li id="fn-6851-9"> Stern, &#8220;Sterilized,&#8221; 1135.&#160;<a href="#fnref-6851-9">&#8617;</a> </li> <li id="fn-6851-10"> Ibid.&#160;<a href="#fnref-6851-10">&#8617;</a> </li> </ol> </div> "Surveillance and Sodomy in 1918 Sacramento" https://inpropriapersona.com/articles/surveillance-sodomy-1918-sacramento/ Tue, 12 Apr 2016 18:02:01 +0000 ecc44f5a794168469782b8935d8ab4db <a href="https://www.amazon.com/Stranger-Intimacy-Contesting-Sexuality-Crossroads/dp/0520270878?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0520270878" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/51Efe93OuDL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/51Efe93OuDL.jpg" alt="Stranger Intimacy: Contesting Race, Sexuality and the Law in the North American West (American Crossroads)" /> </a> <p>Nayan Shah&#8217;s 2011 book on race, sexuality, and the law in the North American West, <a href="//www.amazon.com/Stranger-Intimacy-Contesting-Sexuality-Crossroads/dp/0520270878?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0520270878&quot; target=&quot;_blank&quot; rel=&quot;nofollow&quot;&gt;&lt;/a&gt;">Stranger Intimacy</a>, deals with the complexities of a growing, migratory, contradictory population of the western United States and Canada during the first half of the twentieth century.</p> <p>Shah challenges the traditional story of nuclear families relocating from one settled region to a new one, essentially &#8220;transplanting the settled society of two centuries of European colonization of the Americas from its eastern seaboard to its western expanses.&#8221;<sup id="fnref-6938-1"><a href="#fn-6938-1" class="jetpack-footnote">1</a></sup> The reality, which is readily obvious with some thought about the Alaskan gold rush, timber harvesting, railroads, construction, and farming, involved far more transient, short-term laborers than grand settlement narrative typically incorporates &#8212; and these transient settlers often brought their own forms of gender norms, sexuality, domestic relations. Shah looks in particular at the experiences of South Asian migrants.</p> <p>The settlement narrative does capture the governance vision of the dominant society, and taming transient settlers became a major focus of all levels and branches of government:</p> <blockquote><p> From police campaigns to incarcerate vagrants to implementing racial restrictions on immigration, voting, and property ownership, governing bodies isolated transients from civic association and democratic promises of equality.<sup id="fnref-6938-2"><a href="#fn-6938-2" class="jetpack-footnote">2</a></sup> </p></blockquote> <p>That the settled narrative has, in many cases, erased this history effectively continues &#8220;this pattern of marginalization.&#8221;<sup id="fnref-6938-3"><a href="#fn-6938-3" class="jetpack-footnote">3</a></sup></p> <h3>Privacy and Sexuality in Sacramento</h3> <p>The federal government pushed the city of Sacramento to &#8220;clean up&#8221; the town after deciding to construct a military base nearby.<sup id="fnref-6938-4"><a href="#fn-6938-4" class="jetpack-footnote">4</a></sup> The city responded with an increased police presence, a hallmark of the modern administrative state&#8217;s implementation of the long-standing &#8220;police-power doctrine&#8221; that justified government intervention to protect &#8220;the safety, health, morals and general welfare of the public.&#8221; <sup id="fnref-6938-5"><a href="#fn-6938-5" class="jetpack-footnote">5</a></sup> The result was an intensified &#8220;[p]olice surveillance of boardinghouses, brothels, pubs, and gambling houses&#8221; that effectively turned these areas &#8212; none of which were traditional domestic homes &#8212; into &#8220;semipublic&#8221; spaces.<sup id="fnref-6938-6"><a href="#fn-6938-6" class="jetpack-footnote">6</a></sup></p> <h4>Kurnick &amp; Singh</h4> <p>The case of Stanley Kurnick, 19, &#8220;of Austrian descent,&#8221; and Jamil Singh, a forty-year-old &#8220;Hindu&#8221; is illustrative. Two police officers followed them back to their boardinghouse. Officer Parker &#8220;looked through the keyhole&#8221; into their room and saw &#8220;the motions &#8230; of sexual intercourse.&#8221; The officers then broke down the door and arrested both men.<sup id="fnref-6938-7"><a href="#fn-6938-7" class="jetpack-footnote">7</a></sup></p> <p>Shah writes:</p> <blockquote><p> Sodomy was of such implicit public interest that at the trial neither the prosecution nor the defense attorneys compelled the police officers to explain their interest, justify their search without a warrant, or disclose their source of information. </p></blockquote> <p>He adds that the &#8220;protection of public morality was sufficient justification for police intervention in the &#8216;private&#8217; rooms of boardinghouses.&#8221;<sup id="fnref-6938-8"><a href="#fn-6938-8" class="jetpack-footnote">8</a></sup></p> <p>The Victorian &#8220;domesticity&#8221; division into public (male, work) and private (female, family) spheres was never as firm as its mythology even at its height in the late nineteenth century, but by 1918 it provided little to no protection to transient working men conducting &#8220;family&#8221; (that is, sexual) relations outside a traditional home.</p> <blockquote><p> Irrespective of the efforts of migrant males to remove their intimate activities from public view, the very transience of migrant life cast all their activities outside the boundaries of domestic privacy.<sup id="fnref-6938-9"><a href="#fn-6938-9" class="jetpack-footnote">9</a></sup> </p></blockquote> <p>In 1918 Sacramento, privacy for sexual relations provided protection only to heterosexual married couples:</p> <blockquote><p> The norms of public morality offered valued public the shield of domestic privacy to married couples, but thwarted a similar pursuit of privacy for migrant males.<sup id="fnref-6938-10"><a href="#fn-6938-10" class="jetpack-footnote">10</a></sup> </p></blockquote> <h3>Contraception &amp; Homosexuality</h3> <p>It is useful to compare Shahs&#8217;s analysis of 1918 Sacramento to more modern developments in the law of privacy.</p> <p>Thus, consider Justice Douglas&#8217;s opinion almost fifty-years later in <em>Griswold v. Connecticut</em>, which protected access to contraception by married heterosexual couples under a right-to-privacy analysis:</p> <blockquote><p> Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.<sup id="fnref-6938-11"><a href="#fn-6938-11" class="jetpack-footnote">11</a></sup> </p></blockquote> <p>Seven years later, in <em>Eisenstadt v. Baird</em>, the Court extended the argument to single women &#8212; and, although maintaining the gendered focus on pregnancy, extended privacy protections beyond the bounds of the traditional marital bedroom, writing:</p> <blockquote><p> If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.<sup id="fnref-6938-12"><a href="#fn-6938-12" class="jetpack-footnote">12</a></sup> </p></blockquote> <p>And in a case directly on point for Kurnick and Singh, the majority of the Supreme Court in <em>Bowers v. Hardwick</em>, ignored the issue of the domestic bedroom (perhaps because domesticity still required heterosexual marriage for the majority), despite the dissent&#8217;s argument to the contrary:</p> <blockquote><p> [O]ur prior cases thus establish that a State may not prohibit sodomy within &#8220;the sacred precincts of marital bedrooms,&#8221; <em>Griswold</em>, 381 U.S., at 485, or, indeed, between unmarried heterosexual adults. <em>Eisenstadt</em>, 405 U.S., at 453. In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of the Georgia Criminal Code.<sup id="fnref-6938-13"><a href="#fn-6938-13" class="jetpack-footnote">13</a></sup> </p></blockquote> <p>In <em>Bowers</em>, rather like Kurnick and Singh&#8217;s case in 1918, &#8220;A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male.&#8221;<sup id="fnref-6938-14"><a href="#fn-6938-14" class="jetpack-footnote">14</a></sup></p> <p>In 2003, overturning <em>Bowers</em>, <em>Lawrence v. Texas</em> finally gave Kurnick and Singh constitutional protections for their now-private acts:</p> <blockquote><p> Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. &#8220;It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.&#8221;<sup id="fnref-6938-15"><a href="#fn-6938-15" class="jetpack-footnote">15</a></sup> </p></blockquote> <div class="footnotes"> <hr /> <ol> <li id="fn-6938-1"> Nayan Shah, <em>Stranger Intimacy</em> (Berkeley: University of California Press, 2011), 1.&#160;<a href="#fnref-6938-1">&#8617;</a> </li> <li id="fn-6938-2"> Ibid., 2.&#160;<a href="#fnref-6938-2">&#8617;</a> </li> <li id="fn-6938-3"> Ibid.&#160;<a href="#fnref-6938-3">&#8617;</a> </li> <li id="fn-6938-4"> Ibid., 74.&#160;<a href="#fnref-6938-4">&#8617;</a> </li> <li id="fn-6938-5"> <a href="https://scholar.google.com/scholar_case?case=10760991087928264675">Lochner v. New York</a>, 198 U.S. 45, 53 (1905).&#160;<a href="#fnref-6938-5">&#8617;</a> </li> <li id="fn-6938-6"> Ibid.&#160;<a href="#fnref-6938-6">&#8617;</a> </li> <li id="fn-6938-7"> Ibid.&#160;<a href="#fnref-6938-7">&#8617;</a> </li> <li id="fn-6938-8"> Ibid., 75.&#160;<a href="#fnref-6938-8">&#8617;</a> </li> <li id="fn-6938-9"> Ibid., 78.&#160;<a href="#fnref-6938-9">&#8617;</a> </li> <li id="fn-6938-10"> Ibid.&#160;<a href="#fnref-6938-10">&#8617;</a> </li> <li id="fn-6938-11"> <a href="https://scholar.google.com/scholar_case?case=12276922145000050979">Griswold v. Connecticut</a>, 381 U.S. 479, 485-86 (1965).&#160;<a href="#fnref-6938-11">&#8617;</a> </li> <li id="fn-6938-12"> <a href="https://scholar.google.com/scholar_case?&amp;case=14131534241682283357">Eisenstadt v. Baird</a>, 405 U.S. 438, 453 (1972).&#160;<a href="#fnref-6938-12">&#8617;</a> </li> <li id="fn-6938-13"> <a href="https://scholar.google.com/scholar_case?case=14901730125647575103">Bowers v. Hardwick</a>, 478 U.S. 186, 218 (1986).&#160;<a href="#fnref-6938-13">&#8617;</a> </li> <li id="fn-6938-14"> <a href="https://scholar.google.com/scholar_case?&amp;case=15714610278411834284">Lawrence v. Texas</a>, 539 U.S. 558, 566 (2003).&#160;<a href="#fnref-6938-14">&#8617;</a> </li> <li id="fn-6938-15"> Id., 578. <a href="https://scholar.google.com/scholar_case?case=6298856056242550994">Citing Planned Parenthood of Southeastern Pa. v. Casey</a>, 505 US 833, 847 (1992).&#160;<a href="#fnref-6938-15">&#8617;</a> </li> </ol> </div> "Women, public health, and the police power" https://inpropriapersona.com/articles/women-public-health-police-power/ Fri, 08 Apr 2016 18:00:35 +0000 54efe9180402fcd0ecf4385f585678c1 <p>I have written previously on the <a href="https://inpropriapersona.com/haverty-v-bass/">extensive deference</a> given by courts in the nineteenth and early twentieth centuries when states, acting under the aegis of the so-called &#8220;<a href="https://inpropriapersona.com/salus-populi-suprema-lex/">police power</a>,&#8221; restricted liberty when protecting the&nbsp;&#8220;<a href="https://www.courtlistener.com/opinion/93817/lawton-v-steele/">public safety, health, and morals</a>.&#8221; The court upheld compulsory smallpox vaccination in 1905, for example, holding that individual liberty had to yield before a state&#8217;s power to protect the health of the public.</p> <p>Somewhat confusingly, this deference to government power came at a time when the Supreme Court was increasingly <a href="https://inpropriapersona.com/freedom-to-contract-at-the-end-of-the-nineteenth-century/">striking down regulations</a>&nbsp;intended to, for example, equalize the bargaining position of workers&nbsp;and to protect the health and safety of working men. Economic liberty under the Fourteenth Amendment meant that states had to work hard to justify infringing the <a href="https://inpropriapersona.com/freedom-to-contract-at-the-end-of-the-nineteenth-century/">new &#8220;liberty of contract,&#8221;</a> even if they <em>said</em> they were acting to protect the health and welfare of the public:</p> <blockquote><p>Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employes, if the hours of labor are not curtailed.<br /> &#8212;&nbsp;<em><a href="https://scholar.google.com/scholar_case?case=10760991087928264675">Lochner v. New York</a></em>, 198 US 45, 61 (1905)</p></blockquote> <p>But&nbsp;<em>women </em>were a different story.</p> <p>Thus, the Court held in&nbsp;<em><a href="https://scholar.google.com/scholar_case?case=3938894951846236275">Muller v. Oregon</a></em> (1908) that women&#8217;s hours (in laundries in Oregon)&nbsp;<em>could</em> be limited, unlike those of male bakers (in New York). After all, argued attorney Louis Brandeis in one of the earliest examples of an brief replete with social-science data, when women were exposed to unsafe and unsanitary conditions it affected their &#8220;<a href="http://www.scotusblog.com/wp-content/uploads/2016/01/Historians-Pillsbury.pdf">capacity to product and sustain healthy offspring</a>&#8221; &#8212; and thus implicated the welfare of the public as a whole, not just of the women themselves. In their&nbsp;<a href="http://www.scotusblog.com/wp-content/uploads/2016/01/Historians-Pillsbury.pdf"><em>amici&nbsp;</em>brief</a> to the Supreme Court in relation to&nbsp;<em>Whole Women&#8217;s Health v. Cole</em> (regarding a Texas law that increased restrictions on abortion providers), sixteen historians summarize their view of the impact of the case on legal perceptions:</p> <blockquote><p>Thereafter, women were assumed to be defenseless creatures, easily exploited by employers, and therefore subject to state protection.</p></blockquote> "No privacy in city life: what modern methods are bringing us to (1902)" https://inpropriapersona.com/articles/no-privacy-in-city-life-1902/ Thu, 03 Mar 2016 18:00:45 +0000 853e930f5dd9c56cb45c5686d3291ae1 <p>&#8220;Is it possible,&#8221; <a href="https://www.docdroid.net/DYizJMB/no-privacy-in-city-life-1902.pdf.html">asked the <em>Chicago Tribune</em> in 1902</a>, &#8220;to be a private citizen in Chicago?&#8221;</p> <p>The paper goes on first to make a distinction between &#8220;a prominent citizen&#8221; and &#8220;a private citizen.&#8221; The prominent citizen has, according to the paper, &#8220;has to in a measure turn over his life to the public&#8221; and has become &#8220;in a sense public property.&#8221; The &#8220;ranks of private citizenship,&#8221; on the other hand, consists of those &#8220;who do not hold office, who do not seek office, who are not so rich that they cannot be ignored, and who are not engaged in occupations that bring them conspicuously into view.&#8221;</p> <p>But the paper suggests that in reality this sense of privacy is a false one: &#8220;the veil of privacy is thin&#8221; and many have &#8220;the right or take the privilege of looking through the veil.&#8221;</p> <p>So what pierced the veil of privacy in 1902?</p> <p>First, of course, came birth records, and then when the &#8220;private citizen&#8221; entered school, the Board of Education recorded his public health record: &#8220;If he has had smallpox, diphtheria, or measles the Board of Education wants to know it.&#8221;</p> <p>After graduation, he faced employment applications: employers &#8220;have many questions to ask &#8230; concerning his habits.&#8221; And for positions of trust, employers required a bond&#8211;and this required an investigation: &#8220;Their search is always a thorough one and brings to light about every fact in connection with the private citizen that is of any value.&#8221;</p> <p>Later, when changing jobs, &#8220;he has to have references, and they have to be looked into, and there is another investigation of the man, who fondly imagines that his privacy is his own.&#8221;</p> <p>When the private man &#8220;makes up his mind to be married,&#8221; he has more questions to answer, posed by the marriage licensing office, involving age and parentage.</p> <p>Landlords too ask questions, including &#8220;where he is employed and how much money he gets.&#8221; Those who provide the furniture learn a bit more about him too, such as the extent of the furnishings and &#8220;the price of the piano.&#8221;</p> <p>In court as a witness, &#8220;his life has to be an open book.&#8221; On trial, even for a misdemeanor, &#8220;the microscope is one of the highest imaginable power.&#8221; Even civil litigation subjects the citizen &#8220;to questions which challenge his right to privacy.&#8221;</p> <p>Meanwhile, the &#8220;city directory and telephone directory men&#8221; ask questions, as do &#8220;agents who have things to sell.&#8221;</p> <p>And of course, there is the police:</p> <blockquote><p>The police not only have the right to stop the private citizen as he is on his way to his private home at night, and make him explain his identity and the contents of the package he may be carrying, but they have the right to ask him questions about his friends and acquaintances.</p></blockquote> <p>So, then, what&#8217;s the answer to the question? Can one be a private citizen in Chicago in 1902? The implication is clearly, <em>no</em>, but the writer plays coy:</p> <blockquote><p>Thus it is that from the cradle to the grave the private citizen is constantly in the glare of the calcium, and whether there is such a person as a real private citizen is a question that assuredly admits of more than one opinion.</p></blockquote> <p>All in all, a distinctly modern description of broad issues of privacy &#8212; from 1902.</p> <hr /> <h3><a href="https://www.docdroid.net/DYizJMB/no-privacy-in-city-life-1902.pdf.html">No Privacy in City Life</a> (PDF, Chicago Tribune, 1902)</h3> <p><object data="https://www.docdroid.net/file/download/DYizJMB/no-privacy-in-city-life-1902.pdf#" type="application/pdf" width="100%" height="100%"> </object></p> <p style="text-align: right;"><span style="color: #999999;"><em><small>Photo via <a href="http://www.flickr.com/photos/126377022@N07/14775319341" target="_blank" rel="nofollow">Internet Archive Book Images</a>. </small></em></span></p> "My favorite top WordPress plugins for 2016" https://inpropriapersona.com/articles/favorite-top-wordpress-plugins-2016/ Mon, 29 Feb 2016 17:00:02 +0000 2468d67dd2b158df3777bbdd78f275b2 <p>Periodically, I like to review the top WordPress plugins I use on this blog and capture a snapshot of what I like best and why.</p> <p>Let me note up front that you <em>must</em> install a caching plugin (Wordfence, described below, provides one) if you want to use very many plugins with WordPress &#8212; otherwise your site will slow to a crawl, quickly!</p> <p>But if you do effectively cache your site, then using numerous plugins has a minimal impact, except when a cached page needs to be regenerated after a site update. (And if you run a high-traffic site, you should consider custom plugin development or integrate functionality directly into your theme. You can <a href="https://inpropriapersona.com/contact/">consult me</a> on that, if you like.)</p> <h2>My Current Favorite WordPress Plugins</h2> <p>My current top picks include:</p> <h3><a href="https://wordpress.org/plugins/wordfence/">Wordfence Security</a> <small><em>{easy}</em></small></h3> <p><a href="https://wordpress.org/plugins/wordfence/"><img class="alignright size-medium wp-image-6744" src="http://res.cloudinary.com/krisnelson/image/upload/h_39,w_300/v1514415993/wordfence-logo_nm1qyk.jpg" alt="Wordfence Logo" width="300" height="39" /></a>Wordfence scans, monitors, and protects your site from malicious hackers, bots, and so on. It also offers two effective caching solutions, making it a useful plugin for securing and optimizing WordPress. The basic version (which I use) is free; the paid version adds nice extras that you may wish to consider.</p> <h3><a href="https://wordpress.org/plugins/updraftplus/">UpdraftPlus</a> <small><em>{easy}</em></small></h3> <p><a href="https://wordpress.org/plugins/updraftplus/"><img class="alignright size-full wp-image-6750" src="http://res.cloudinary.com/krisnelson/image/upload/v1514415988/updraft-logo-small_h4fesg.png" alt="UpdraftPlus Logo" width="200" height="65" /></a>You need to back up your WordPress site along with your posts (stored in a database, not in your filesystem). The easiest and best free plugin to do this is UpdraftPlus. I export my database daily and my entire WordPress install fortnightly, then store copies locally and on Amazon S3.</p> <h3><a href="https://wordpress.org/plugins/wp-inject/">ImageInject</a> <small><em>{easy}</em></small></h3> <p>Big graphical elements are <em>de rigueur </em>on the Web today, and for good reason: they work to attract readers. But unless you employee (or are) a professional photographer, are happy with standard stock images (you shouldn&#8217;t be), look for other sources of high-resolution images (tedious), or appropriate other people&#8217;s copyrighted photos (don&#8217;t do that!) &#8212; the best consistent source is, I think, <a href="https://www.flickr.com/">Flickr</a>. But finding, downloading, and adding images of the right size is an annoying delay in the writing process, and proper attribution can be tricky (and it easy to forget).</p> <p>ImageInject isn&#8217;t fancy, but it helps smooth out the process, making selecting, adding, and attributing images in your posts less painful.</p> <h3><a href="https://wordpress.org/plugins/amberlink/">Amber</a> <small><em>{medium-easy}</em></small></h3> <p><a href="https://wordpress.org/plugins/amberlink/"><img class="size-medium wp-image-6745 alignright" src="http://res.cloudinary.com/krisnelson/image/upload/h_59,w_300/v1514415991/amber-logo_yvromt.png" alt="Amber Logo" width="300" height="59" /></a>Developed by the <a href="https://cyber.law.harvard.edu/" rel="nofollow">Berkman Center for Internet &amp; Society</a>, Amber keeps remote links accessible over time, even if the pages you link to disappear (<a href="https://en.wikipedia.org/wiki/Link_rot">link rot</a> is a perennial problem for any blog older than a year). You can have Amber scan your links and save copies locally or remotely. Personally, I have Amber notify the <a href="https://archive.org/web/">Internet Archive</a> of the need to preserve the link; the Archive then takes care of preserving snapshot of the remote page for future reference.</p> <h3><a href="https://wordpress.org/plugins/really-simple-ssl/">Really Simple SSL</a> + <a href="https://wordpress.org/plugins/cloudflare/">CloudFlare</a> <small><em>{medium-complex}</em></small></h3> <p><a href="https://wordpress.org/plugins/cloudflare/"><img class="alignright size-medium wp-image-6756" src="http://res.cloudinary.com/krisnelson/image/upload/h_50,w_300/v1514415984/cloudflare-logo_h1klfx.png" alt="CloudFlare Logo" width="300" height="50" /></a><a href="https://wordpress.org/plugins/really-simple-ssl/"><img class="alignright size-medium wp-image-6755" src="http://res.cloudinary.com/krisnelson/image/upload/h_48,w_300/v1514415986/really-simple-ssl-logo_hxumpj.png" alt="Really Simple SSL Logo" width="300" height="48" /></a>CloudFlare allows easy setup of SSL for remote sites (and even the free version works as a transparent Content Delivery Network/cache to speed up visitor access to your site and reduce the bandwidth and the load on your server). Combined with Really Simple SSL, you can make your entire WordPress site use modern encryption standards with minimal work.</p> <p>Considering that the big players (Google, in particular) are increasingly indicating a preference for secured sites, I recommend you consider doing this. You will need to go through the steps at <a href="https://www.cloudflare.com/">CloudFlare.com</a>, not just install the plugin, but it&#8217;s well worth it.</p> <p>If you run a site with <em>actual</em> confidential content that needs encryption (consider your content, user logins, countries visitors are coming from, and similar issues), then you need to take a few more steps, including either buying an SSL certificate or (since CloudFlare masks the details) using a self-signed one. But if you simply want to &#8220;go SSL&#8221; and get many of the benefits without worrying about bank-grade encryption and validation, then CloudFlare&#8217;s &#8220;Flexible SSL&#8221; option combined with Really Simple SSL will do nicely.</p> "Four useful analytic categories from science and technology studies" https://inpropriapersona.com/articles/four-useful-analytic-categories-science-technology-studies/ Sun, 28 Feb 2016 21:39:45 +0000 b48dfb74116c748fcefe70c8c95a6fff <a href="https://www.amazon.com/Privacy-America-Interdisciplinary-William-Aspray/dp/0810881101?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0810881101" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/41njD0xsOOL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/41njD0xsOOL.jpg" alt="Privacy in America: Interdisciplinary Perspectives" /> </a> <p>Science and technology studies (STS) is an interdisciplinary collection of analytic approaches. It is neither unitary nor fixed in meaning, but generally includes works from traditional disciplines like the history and philosophy of science, anthropology, sociology, communications, and similar critical disciplines that focus on analyzing and understanding science and technology in context.</p> <p>In his <a href="http://www.amazon.com/gp/product/0810881101/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0810881101&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=UBAP53BVZLOHYEGG">analysis of the Digital Millennium Copyright Act</a>, Philip Doty pulls out four concepts from STS that he believes are particularly useful:</p> <h3>Sociotechnical</h3> <p>Technologies are always <em>sociotechnical.</em> Doty draws on the concept developed by Thomas Hughes to explain that &#8220;technologies must be understood as both technical and social&#8221; (221). He notes that one ought not to privilege either the social nor the technical alone when &#8220;discussing the genesis of technologies, &#8230; their implementation and deployment, or &#8230; their use&#8221; (221).</p> <p>Drawing on David Nye, Doty explains that technologies emerge from more than just &#8220;internal technical imperatives&#8221; (i.e., the fusion bomb as an inevitable next step after the development of fission). Instead, quoting Nye, technologies are &#8220;shaped by social conditions, proves, traditions, popular attitudes, interest groups, class differences, and government policy&#8221; (221). (But note that they are <em>shaped </em>not <em>determined</em> by these social factors.)</p> <h3>Ensembles</h3> <p>Similarly, technologies are &#8220;necessarily <em>ensembles,</em>&#8221; irreducible to discrete combinations of either only technical things or only social factors.</p> <h3>Agency</h3> <p>Technologies result from decisions made by people exercising <em>agency </em>through particular decisions, rather than inevitable outcomes of prior technologies or artifacts;</p> <h3>Historicity</h3> <p>And, finally, the <em>historicity</em> of technologies &#8212; that is,  that technological development operates in a particular historical context and neither inevitably determines, nor is inevitably determined, by history.</p> <p>All four of these provide useful analytic categories for an analysis of techno-scientific developments.</p> "Privacy can keep histories of abuse hidden from public view" https://inpropriapersona.com/articles/privacy-hides-histories-of-abuse/ Fri, 26 Feb 2016 17:00:44 +0000 545df48d364a65c4b38f64730444a749 <p>I want to quickly capture, without deep analysis, a problematic side of privacy.</p> <p>The current fight <a href="http://www.theguardian.com/technology/2016/feb/19/apple-fbi-privacy-encryption-fight-san-bernardino-shooting-syed-farook-iphone">between Apple and the FBI</a> pits &#8212; rhetorically at least &#8212; the privacy of (potential) criminals against the rights of victims. (The FBI, I suspected, has chosen to discuss the impact on victims because the alternative of impeding federal criminal investigations is less compelling &#8212; and has the potential to awake American&#8217;s inherent distrust of government intervention.)</p> <p>Whether the FBI is right is not what I am concerned with here.</p> <p>Instead, I want to briefly note that privacy has had a troubled history in relation to victims of crime and civil rights violations.</p> <p>Privacy protections help limit the exposure of names and personal details of campus survivors of sexual assault, for example, but similar protections often prohibit the disclosure of information about accused students, even when those students are found responsible.</p> <p>Historically, ideas of privacy have served to <a href="https://inpropriapersona.com/affirmative-vs-passive-privacy-domestic-violence-abortion/">hide domestic abuse from public scrutiny</a> (the home has historically received the highest level of privacy in Anglo-American law and society, after all), protecting abusers from the repercussions of their actions and making it harder for victims to get assistance.</p> <p>Similarly, although medical privacy protections (like HIPAA) serve to protect individual rights against potential invasions of privacy, they can also help hide longterm abuses by restricting access to key details to researchers and investigators.</p> <p><a href="http://www.amazon.com/gp/product/0807855855/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0807855855&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=S3XDF2NPMXTSI2H6"><img class="alignleft" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0807855855&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /></a><img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0807855855" alt="" width="1" height="1" border="0" />Thus, for example, <a href="http://www.amazon.com/gp/product/0807855855/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0807855855&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=S3XDF2NPMXTSI2H6">Johanna Schoen&#8217;s work</a> on eugenic sterilization programs in the United States was impeded by well-meaning restrictions on her access to specific patient information on those who had been targeted for sterilization. North Carolina finally allowed her access to their records on their program (which lasted from 1934-1966), though irregularly and with some trepidation. <a href="https://books.google.com/books?id=TdaSw-V7ouQC&amp;pg=PA243#v=onepage&amp;q&amp;f=false">She writes</a> (on page 243):</p> <blockquote><p>[I]t became increasingly clear to me that the privacy laws that kept the records of all thirty state sterilization programs closed to protect sterilization victims had another effect: they also kept this history hidden from public view.</p></blockquote> <p>Anyone researching anything remotely modern runs into this problem (I did as I sought to look at the records of the <a href="https://embryo.asu.edu/pages/human-betterment-foundation-1928-1942">Human Betterment Foundation</a> in California). And, of course, it isn&#8217;t limited to historians (or reporters) working on health information; privacy justifications are regularly cited by government officials, too, in order to limit access.</p> <p>It isn&#8217;t a simple problem to solve.</p> <p>&nbsp;</p> <p style="text-align: right;"><span style="color: #999999;"><em><small>Photo via <a href="http://www.flickr.com/photos/73993978@N00/9556736047" target="_blank" rel="nofollow">shauser</a>. <a title="Attribution License" href="http://creativecommons.org/licenses/by/2.0/" target="_blank" rel="nofollow"><img src="https://inpropriapersona.com/wp-content/plugins/wp-inject/images/cc.png" alt="" /></a></small></em></span></p> "Affirmative vs. passive privacy in domestic violence and abortion" https://inpropriapersona.com/articles/affirmative-vs-passive-privacy-domestic-violence-abortion/ Wed, 24 Feb 2016 21:56:08 +0000 1e131ca1662cb81a8ec106d470f4c356 <p><a href="http://www.amazon.com/gp/product/0415908450/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0415908450&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=37TXGDKG3HQ3FAWT" rel="nofollow"><img class=" alignright" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0415908450&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /></a>In &#8220;The Violence of Privacy,&#8221; a chapter in a larger edited work from 1994 called <a href="http://www.amazon.com/gp/product/0415908450/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0415908450&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=37TXGDKG3HQ3FAWT">The Public Nature of Private Violence</a>, Elizabeth M. Schneider discusses the challenges posed to activists against domestic violence by mid-to-late twentieth century developments in privacy jurisprudence. She goes on to describe the potential for a shift from a more passive &#8220;right to be let alone&#8221; version of privacy &#8212; as articulated in, for example, Justice William Douglas&#8217; majority opinion in <a href="https://scholar.google.com/scholar_case?q=griswold&amp;hl=en&amp;as_sdt=2006&amp;case=12276922145000050979&amp;scilh=0"><em>Griswold v. Connecticut</em></a> and traceable back to <a href="https://inpropriapersona.com/the-right-to-privacy-by-warren-and-brandeis/">Warren and Brandeis&#8217; 1890 law review article on privacy</a> as well as Thomas Cooley&#8217;s earlier <a href="https://books.google.com/books?id=7Wo9AAAAIAAJ&amp;pg=PA29#v=onepage&amp;q&amp;f=false">Treatise on the Law of Torts</a> &#8212; with a more aggressive and affirmative version of privacy as a guarantee of liberty, and articulated by Justice Douglas&#8217; concurring opinion in <em><a href="https://scholar.google.com/scholar_case?q=roe+v.+wade&amp;hl=en&amp;as_sdt=2006&amp;case=12334123945835207673&amp;scilh=0">Roe v. Wade</a></em> eight years later.</p> <p>Much of her discussion reflects the challenges feminists have posed to the use of a &#8220;right to privacy&#8221; as the foundation for <em>Roe,</em> as opposed to, for example, a right to liberty. Schneider explains the argument that the value of the &#8220;<a href="https://books.google.com/books?id=aomTpaG6FkkC&amp;pg=PA52#v=onepage&amp;q&amp;f=false">abortion right</a>&#8221; is not so much about preventing government intervention into the private sphere &#8212; nor about protecting the secrecy of the procedure &#8212; but rather that permitting abortions empowers women to be decision-making agents and that it is the government&#8217;s role to protect women&#8217;s right to &#8220;<a href="https://books.google.com/books?id=aomTpaG6FkkC&amp;pg=PA52#v=onepage&amp;q&amp;f=false">autonomy, self-expression, and self-determination.</a>&#8221;</p> <p>She <a href="https://books.google.com/books?id=aomTpaG6FkkC&amp;pg=PA53#v=onepage&amp;q&amp;f=false">uses the example</a> of the abuse of women by men in domestic situations to illustrate the problem of passive privacy, the &#8220;right to be let alone&#8221; version:</p> <blockquote><p>Privacy [of this kind] justifies the refusal of the state to intervene, of judges to issue restraining orders, of neighbors and friends to intervene or to call the police, of communities to confront the problem, and of social workers to act.</p></blockquote> <p>On the other hand, <a href="https://books.google.com/books?id=aomTpaG6FkkC&amp;pg=PA53#v=onepage&amp;q&amp;f=false">she argues</a>, the more &#8220;affirmative&#8221; approach taken by Douglas&#8217; concurrence in <em>Roe</em> emphasizes &#8220;autonomy, freedom of choice with respect to the basic decisions of life concerning intimate association, freedom from battering and coercion, and freedom to be themselves.&#8221;</p> <p>In summary, Schneider <a href="https://books.google.com/books?id=aomTpaG6FkkC&amp;pg=PA53#v=onepage&amp;q&amp;f=false">suggests</a> that the challenge is to &#8220;develop a right to privacy which is not synonymous with the right to state noninterference within the family.&#8221; Instead, privacy ought to be articulated as &#8220;grounded on equality,&#8221; as an &#8220;aspect of autonomy that protects bodily integrity&#8221; &#8212; and viewing abuse as impermissible &#8212; fosters a version that &#8220;is based on a genuine recognition of the importance of personhood.&#8221;</p> "Haverty v. Bass: protecting the public health in 1876" https://inpropriapersona.com/articles/haverty-v-bass/ Sat, 20 Feb 2016 18:30:38 +0000 7a1ae0b5507a150705f651e0edf85595 <p>States and designated localities (notably not the federal government) exercised nearly unlimited power when they acted to protect the public: faced with an outbreak of smallpox, for example, houses could be searched without warrants and children seized from the arms of their mothers and then forcibly quarantined &#8212; all to protect the public health.</p> <p>A case for trespass, <em>Haverty v. Bass</em>,&nbsp;66 Me. 71,&nbsp;decided by Maine&#8217;s Supreme Judicial Court in 1876, illustrates the strength of the police power to overcome private rights in the name of the public good. On April 15, 1873, under the authority of the mayor and a local health statute, a Bangor police officer and a physician &#8220;broke and entered the husband&#8217;s house (which was fastened against the officers)&#8221; and forcibly pulled Martin Haverty&#8217;s child &#8220;out of the arms of the mother&#8221; in order &#8220;to remove it to the city hospital&#8221; for quarantine due to suspected smallpox infection. No warrant to invade the Haverty&#8217;s home was sought first, despite a provision for seeking such warrants in the statute and despite Maine&#8217;s 1820 constitution and its guarantee in Article I, Section 5 that &#8220;people shall be secure in their persons, papers, and possessions from unreasonable searches and seizures&#8221; (echoing the Fourth Amendment to the United States Constitution).</p> <p>Maine&#8217;s highest court was unsympathetic, even though the process of forcible quarantine contained &#8220;no provision for any examination by the justices, nor for notice to any parties to be heard, nor could any appeal be had.&#8221; Given the risk to the community, individuals citizens could not be trusted to make good decisions:</p> <blockquote><p> Experience probably shows that communities and individuals are not promptly enough aroused to the dangers that beset them in such emergencies. </p></blockquote> <p>Community safety overrode private rights:</p> <blockquote><p> The maxim <em><a href="https://inpropriapersona.com/salus-populi-suprema-lex/">salus populi suprema lex</a></em> is the law of all courts and countries. The individual right sinks in the necessity to provide for the public good. </p></blockquote> <p>Still, there were limits, at least in theory: individuals could seek a remedy in tort if public officials acted with &#8220;malice,&#8221; for example, and there was always the ancient remedy of <em>habeus corpus</em> to be sought if an individual was unjustly detained.</p> <p>But for the mother of the unnamed child, and for the injury to her domestic tranquility, otherwise so prized in American jurisprudence, there was no remedy. Presumably the public good made even warrantless entry into a secured home and the seizure of a child a reasonable act.</p> "Salus populi suprema lex: law and public health" https://inpropriapersona.com/articles/salus-populi-suprema-lex/ Thu, 18 Feb 2016 16:39:35 +0000 48bd1e664059af21e96ccf55205e5dfe <p>One of the oldest and strongest limitations on liberty is that governments can act &#8212; via the so-called &#8220;police powers&#8221; of the states &#8212; to protect the health and welfare of the public:</p> <blockquote><p>It is very clear and well settled that the statutes are not obnoxious to the objection of unconstitutionality, which is the other point argued by the plaintiffs. It is unquestionable, that the legislature can confer police powers upon public officers, for the protection of the public health. The maxim <em>salus populi suprema lex</em> is the law of all courts and countries. The individual right sinks in the necessity to provide for the public good. The only question has been, as to the extent of the powers that should be conferred for such purposes.<br /> &#8212; <em>Haverty v. Bass,</em> 66 Me. 71 (1876)</p></blockquote> <p>The rather more famous <em>Lochner v. New York, </em>normally cited as the pre-eminent case supporting the now-discredited judicially protected concept of liberty of contract, allows that &#8220;general welfare&#8221; restrictions, exercised through these same &#8220;police powers,&#8221; are capable of restricting even their precious economic freedoms:</p> <blockquote><p>The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. <a href="https://scholar.google.com/scholar_case?case=8434070620249495815&amp;q=%22general+welfare%22+history&amp;hl=en&amp;as_sdt=2006"><i>Allgeyer</i> v. <i>Louisiana,</i> 165 U.S. 578</a>. Under that provision no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public.<br /> &#8212; <em><a href="https://scholar.google.com/scholar_case?case=10760991087928264675">Lochner v. New York</a>,</em> 198 US 45 (1905)</p></blockquote> <p>As a result the power of state governments to restrict liberty in the name of public health has endured throughout the history of the United States, allowing even for rather extreme measures like forced (at the end of a police club, at times) vaccination, mandatory quarantines, and even the forcible transport and incarceration of citizens suspected of being infected with diseases like smallpox &#8212; actions taken most commonly late in the nineteenth century, when some have maintained the <a href="https://inpropriapersona.com/nineteenth-century-america-was-not-a-libertarian-utopia/">United States was at its most libertarian</a>.</p> "Doctor-patient privilege and the common law" https://inpropriapersona.com/articles/doctor-patient-privilege-is-newer-than-i-thought/ Mon, 28 Dec 2015 02:39:17 +0000 f7ea7be0e350257b79015d7a4406fafd <p>Despite being part of the <a href="https://en.wikipedia.org/wiki/Hippocratic_Oath">original Hippocratic oath</a>, doctor-patient confidentiality is a relatively new addition to Anglo-American law. The relevant part of the traditional text reads:</p> <blockquote><p>Whatever, in the course of my practice, I may see or hear (even when not invited), whatever I may happen to obtain knowledge of, if it be not proper to repeat it, I will keep sacred and secret within my own breast.</p></blockquote> <p>It seems that the legal privilege to keep a patient&#8217;s secrets was granted under Roman law and, in turn, in French civil law (in fact, it seems to have been a duty) &#8212; but never made it into Anglo-American common law as created by the judiciary. It took state legislatures, beginning with New York in 1828, to add new statutory protection granting the privilege and putting physicians on a similar footing to attorneys. (See John Frelinghuysen Hageman&#8217;s 1889 treatise, <a href="https://books.google.com/books?id=qYQsAQAAMAAJ">Privileged Communications as a Branch of Legal Evidence</a> 114-15; 2 Int. L. J. 114 1892-1893; and 10 Alb. L. Rev. 60 1940-1941.)</p> <p>Despite the slow legal uptake of this form of privacy, public sentiment clearly expected doctors to keep secrets:</p> <blockquote><p>The physician who has taken the usual oath of Hippocrates has sworn to keep such secrets inviolate, and that physician in an American State, where the privilege has not been extended by statute, who should disclose the secrets of his patient would encounter public odium and social ostracism, so universal is the public sentiment against any disclosures by a physician or surgeon of the professional secrets of his patients.  (Clark Bell, &#8220;Privileged Communications,&#8221; 2 Int. L. J. 114 1892-1893)</p></blockquote> <p>By 1889, 18 states and territories had <a href="https://books.google.com/books?id=qYQsAQAAMAAJ">conferred this privilege</a> on the medical profession.</p> "Making DNS work when your ISP blocks port 53" https://inpropriapersona.com/articles/making-dns-work-isp-blocks-port-53/ Fri, 30 Oct 2015 18:24:45 +0000 7daa3e22622884697e4651e853ffaa8c <p>As I was curious about the methods and approaches of so-called &#8220;Smart DNS&#8221; services to get around geo-blocking, I wanted to experiment with a variety of them to see how they functioned.</p> <p>Frustratingly, I couldn&#8217;t get any of them to work. I could change my DNS servers (on my router, on my Windows machine, on my Mac, and on my Linux box) to point to the correct servers but&#8230; nothing. No DNS. Thinking perhaps my ISP (which happens to be my university, since I&#8217;m on their network) was restricting DNS so that I had to use the official ones, I tried Google&#8217;s DNS and OpenDNS, both of which worked just peachy.</p> <p>I decided my provider must be allowing <em>some</em> but not all external DNS servers to be used, probably for some security/malware threat evasion (maintaining undergraduate access to a university network must be a nightmare).</p> <p>Once I realized at least some DNS providers allowed non-standard port access (though none seemed to support DNSCrypt, which at first glance looked like a decent possibility)&#8211;and having confirmed it worked via Linux&#8217;s &#8220;dig&#8221; command &#8212; I set out making my network do this.</p> <p>But how? On most systems, you can&#8217;t just say use 8.8.8.8:5353 and have the new port start working (maybe it works on some; I didn&#8217;t check deeply). And the old router I was using for this didn&#8217;t support this either (and I didn&#8217;t want to get another router and go with DD-WRT, which I do use on my &#8220;real&#8221; network).</p> <p>So instead I put DNSMasq on my Linux machine inside the network, made sure the firewall allowed incoming queries to it on port 53, and directed my router to query my internal DNS server.</p> <p>DNSMasq supports alternative ports for outgoing connections by just putting a colon and the port (8.8.4.4:5353, for example). And <em>voilà</em> &#8212; it works.</p> <p>Now I can play around with these &#8220;Smart DNS&#8221; systems (which seem to be a kind of selective proxy, which is cool but not super-technically exciting in itself, and is only sort of DNSy anyway).</p> <p><span style="color: #ff0000;"><em>Note: I ended this experiment after a week or so. As a technical demonstration, it worked; as a practical matter, I don&#8217;t need to do this nor do I actually need a &#8220;Smart DNS&#8221; service.</em></span></p> "Cows vs. railroads: the near-death experience of President Grant" https://inpropriapersona.com/articles/cows-vs-railroads/ Fri, 10 Jul 2015 18:02:00 +0000 2cc4bde14e418440eab52ab2e185e5bf <p>A rather incredible 1869 train accident involved President Grant, his family, and the Secretary of the Treasury &#8212; and a cow.</p> <p>Running at full speed, the train&#8217;s &#8220;engineer observed in the dim light ahead, about half the length of the train, a cow on the track.&#8221; A <em>New York Times</em> article of June 12, 1869, entitled merely &#8220;The Railroad Accidence,&#8221; explains:</p> <blockquote><p>The lightning speed at which the train was running at the time rendered any attempt to reverse the engine futile, and in a second the cowcatcher had seized the animal and thrown her to the right of the track.</p></blockquote> <p>If this was the end of the story, it would simply be one of the most common injuries involving trains in the nineteenth century: death of livestock. (In fact, the train containing passengers from the damaged train went to strike and kill another cow while taking them on to Baltimore.) But the death of the first cow was not the end of the story:</p> <blockquote><p>Unfortunately, a train of burden cars was stationed on the Annapolis switch … at the point where the accident occurred, and the cow struck one of them, and rebounding after the engine and tender and man and baggage car had passed, struck the baggage car, knocking the rear truck from under it. This truck, thus flying loose, struck the smoking car, which was thrown off the track and broken into fragments, all the passengers being more or less injured.</p></blockquote> <p>In total, some thirty people suffered harm in total, though the article notes, &#8220;It is a source of wonder to railroad men and others that an accident of such magnitude as the one described above could occur with no more serious results.&#8221;</p> <p>President Grant was unharmed: &#8220;The President is described as being very cool and collected when the disaster occurred, but Mrs. Grant was considerably alarmed, as were all the female passengers on the train.&#8221;</p> "Thinking about evidence and causation in same-sex marriage arguments" https://inpropriapersona.com/articles/evidence-causation-same-sex-marriage-arguments/ Sun, 05 Jul 2015 21:40:23 +0000 35731c4802d8af02278b0bbe5c28b055 <p>A recurring theme in criticisms of allowing same-sex marriage &#8212; or, as <em><a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">Obergefell</a></em> did, in finding that bans violated the fundamental right to marriage &#8212; is some variation of the &#8220;slippery slope.&#8221;</p> <p>There is nothing wrong with considering possible consequences or implications of applying the logic of one situation to others. In fact, doing so is absolutely key to rational thought and effective decision making. But failing to logically consider the chain of events or enough of the full complexities leads to poor, unsupported, and fallacious conclusions.</p> <p>Thus, opponents of any kind of state-mandated vaccination must deal with the likely consequence &#8212; based on evidence from states and nations that have lessened vaccine mandates &#8212; that fewer people will be vaccinated and that such an outcome will result in a greater incidence of preventable diseases. In other words, this is a &#8220;slippery-slope&#8221; argument with both causative and evidentiary support.</p> <p>The existence of such a consequence, however grave, does not <em>determine</em> that best choice. The impact on liberty resulting from increasing state intervention may justify the deaths of some infants, for example (we allow infants to travel in automobiles, despite the death rate); the harmful effects, or high costs, of some vaccines may lead us to avoid mandating their use (we don&#8217;t mandate the anthrax vaccine in children). But without both data and explanations (to support causation versus mere correlation, for example) we cannot balance such issues rationally.</p> <p>Consider the argument that allowing same-sex unions will reduce the number of opposite-sex marriages. Positing this possibility is part of effective analysis &#8212; but is there evidence to support it? In legal-evidence terms, is there any foundation for such a conclusion? Justice Kennedy:</p> <blockquote><p>The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe.</p></blockquote> <p>Can we even construct a reasonable causative explanation for such an effect or, indeed, any negative effect on anyone? Again, Justice Kennedy:</p> <blockquote><p>Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.</p></blockquote> <p>In other words, critics have both failed to provide evidence that same-sex marriages will cause anyone harm and failed to articulate a causative process by which this kind of harm could occur through the marriage alone.</p> <p>In the same-sex marriage context, this evidentiary problem of harm (e.g., the American Sociological Association&#8217;s <a href="http://www.asanet.org/press/asa_files_amicus_brief_in_same-sex_marriage_cases.cfm">statement</a> that &#8220;research shows parents&#8217; sexual orientation has no bearing on children’s well-being&#8221;) meant that supporting infringement of the fundamental right to marriage was so difficult.</p> <p>This is also why opponents, and the dissenters <i>Obergefell,</i> relied so heavily on historical, philosophical, religious, and definitional arguments. The kind of harm these arguments posited was not so amendable to sociological measurement and thus is not so easy to dismiss.</p> <p>How does one counter through specific evidence Justice Scalia&#8217;s assertion that <em>Obergefell </em>is a &#8220;threat to American democracy&#8221;? How does one balance this argument of Justice Kennedy:</p> <blockquote><p>[Same-sex marriage] denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.</p></blockquote> <p>against this one of Justice Scalia:</p> <blockquote><p>We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.</p></blockquote> <p>These kinds of value-intensive debates are still amenable to evidence-based analysis &#8212; particularly historical evidence &#8212; but are much more challenging to resolve, in my opinion at least.</p> "Privacy, liberty, dignity: Kennedy in Obergefell" https://inpropriapersona.com/articles/privacy-liberty-dignity-kennedy-in-obergefell/ Wed, 01 Jul 2015 21:07:01 +0000 a85ce6da861cec640b6fcee89bf31208 <p>Kennedy took a fascinating approach to discussing fundamental rights in <em><a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">Obergefell</a>, </em>making an argument that combined substantive due process with equal protection. To do this, he moved away from &#8220;privacy,&#8221; used in many of the cases he cited, to &#8220;dignity&#8221; and &#8220;liberty.&#8221;</p> <p>Using the term &#8220;liberty&#8221; instead of &#8220;privacy&#8221; (as in <em>Griswold</em> and <em>Roe v. Wade</em>) <a href="https://inpropriapersona.com/theoretical-musings-privacy-law-technology/">when discussing issues of autonomy</a> is a good rhetorical/political move, I think, since it is, after all, specifically in the Constitution. (That courts used privacy instead is, I&#8217;d argue, because we&#8217;re a common-law country and the precedent was useful).</p> <p>Using &#8220;dignity&#8221; is even more fascinating (Thomas&#8217; dissent completely misunderstands it, I should note). Its use takes me back to <a href="https://inpropriapersona.com/the-right-to-privacy-by-warren-and-brandeis/">Warren and Brandeis&#8217; 1890 article</a> on the right to privacy, which arguably attempted (with mixed success) to import a European style &#8220;dignity of the person&#8221; into American law, albeit under the concept of &#8220;inviolate personality.&#8221;</p> <p>That attempt, involving restricting press invasions of the privacy of upper-class Bostonians, would run into with the First Amendment&#8217;s speech protections, but using the concept in substantive due process and equal protection analysis mostly sidesteps issues of freedom of speech&#8211;and provides a potentially powerful lens for framing the harm caused by violations of liberty in a useful and compelling way.</p> <p>For more on this from this from other perspectives, see:</p> <ul> <li><a href="http://www.theatlantic.com/politics/archive/2015/04/the-dangerous-doctrine-of-dignity/391796/">The Dangers of a Constitutional &#8216;Right to Dignity&#8217;</a></li> <li><a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/26/of-marriage-and-liberty-thoughts-inspired-by-justice-thomas-obergefell-dissent/">Of marriage and liberty—some thoughts on Justice Thomas&#8217; <em>Obergefell</em> dissent</a></li> </ul> "The National Anti-Monopoly League" https://inpropriapersona.com/articles/the-national-anti-monopoly-league/ Mon, 06 Apr 2015 19:15:43 +0000 78f153d83e294aac826c76d33158d751 <figure id="attachment_6327" style="max-width: 300px" class="wp-caption alignright"><img class="size-medium wp-image-6327" src="http://res.cloudinary.com/krisnelson/image/upload/h_164,w_300/v1514416002/14574696319_ed96937c38_o_zonmsz.jpg" alt="Image from page 381 of &quot;American engineer and railroad journal&quot; (1893)" width="300" height="164" /><figcaption class="wp-caption-text">Image from page 381 of &#8220;American engineer and railroad journal&#8221; (1893)</figcaption></figure> <p>There are times when certain conflicts of the 1880s and 1890s seem eerily similar to debates today &#8212; we are, it seems, both separated and united with our equivalents of a century and a quarter ago. (Are there lessons to be learned? Perhaps.)</p> <p>Take the statement, published in 1881, by the National Anti-Monopoly League, a group composed of merchants, industrialists, labor reformers, ministers, and humanists, all of whom reacted to the rapid pace of change in society and conservatively called for <a title="Preserving Jeffersonian ideals through government regulation" href="https://inpropriapersona.com/preserving-jeffersonian-ideals-government-regulation/">a return to Jeffersonian ideals</a> through &#8212; oddly to many today &#8212; government regulation. They wrote:</p> <blockquote><p>Our principles: Anti-Monopoly</p> <p>We advocate, and will support and defend, the rights of the many as against the privileges of the few.</p> <p>Corporations, the creations of the State, shall be controlled by the State.</p> <p>Labor and capital, allies, not enemies &#8212; justice for both.</p></blockquote> <p>If this seems a strange alliance of conservative forces, remember also that railroads (the principal target of the League) did <em>not</em> simply favor<em> </em>removing government from the equation (though their anti-regulation rhetoric often argued that) but rather that government ought to serve their interests (think of the use of eminent domain by governments on behalf of railroad right-of-ways).</p> <p>A few of the &#8220;objects&#8221; of the League included:</p> <ul> <li>Laws prohibiting personal discrimination on &#8220;public highways.&#8221;</li> <li>Laws compelling public officers to defend a citizen&#8217;s rights &#8220;against injustice by powerful corporations.&#8221;</li> <li>&#8220;Laws providing for the restriction within proper limits of corporate powers and privileges generally, and for the protection, education and elevation of the masses.&#8221;</li> </ul> <p>For more on this history, I recommend the classic 1955 book by Lee Benson, entitled <em>Merchants, <a href="http://books.google.com/books/about/Merchants_Farmers_Railroads.html?id=HXVEAAAAIAAJ">Farmers, &amp; Railroads: Railroad Regulation and New York Politics 1850-1887</a>.</em></p> "Preserving Jeffersonian ideals through government regulation" https://inpropriapersona.com/articles/preserving-jeffersonian-ideals-government-regulation/ Wed, 05 Nov 2014 22:35:32 +0000 823737c15bfdd11e1b54ff968f58346b <p>In the contentious years of Gilded Age America &#8212; 1870-1900 &#8212; the general consensus has been than the United States, as a whole, favored industrialists and free-market capitalism (<em>laissez faire</em>), with the law of contracts coming to dominate the legal landscape, culminating in the triumph of &#8220;liberty of contract.&#8221;</p> <p>Reality, unsurprisingly, was more complex. Tort law, for example, became increasingly important, particularly as judges and juries sought to compensate the victims of increasingly deadly technologies (railroads, factory machinery, and so on) in the face of horrific injuries and limited social protections (most charity was private, there was no Worker&#8217;s Compensation, no Social Security, no Medicare, and so on).</p> <p>Indeed, the late nineteenth century was <a title="Nineteenth-century America was not a libertarian utopia" href="https://inpropriapersona.com/nineteenth-century-america-was-not-a-libertarian-utopia/">less a libertarian paradise</a> and more a time of contentious debate between old and new approaches to economic and governance matters. It was the turn of the century that brought us the triumph of <em>laissez faire</em> in the Supreme Court (&#8220;<a title="Post-war contract law in the nineteenth century" href="https://inpropriapersona.com/post-war-contract-law-in-the-nineteenth-century/">liberty of contract</a>&#8220;) &#8212; but also saw the development and growth of new state and federal administrative agencies.</p> <p>In the conflicted late nineteenth century, then, not all American, and not even all American capitalists, bought into a <em>laissez</em> <em>faire</em> economic philosophy. Some, like Francis B. Thurber, owner of the nation&#8217;s largest wholesale grocery firm of the 1880s, fought back on quite conservative principles, invoking the ideals of <a href="http://en.wikipedia.org/wiki/Jeffersonian_democracy">Jeffersonian democracy</a> (with the virtuous, but suspicious, small-scale farmer as their ideal man, and centralized government power as their core worry) to argue <i>against</i> the growing trend towards promoting economic freedom from government intervention as the highest ideal of liberty. <a href="http://www.worldcat.org/title/merchants-farmers-railroads-railroad-regulation-and-new-york-politics-1850-1887/oclc/181787897">Lee Benson</a> writes that Thurber felt that</p> <blockquote><p>to preserve Jeffersonian social ideals amidst the centralizing tendencies of the Communication Revolution, it was necessary to stand Jeffersonian &#8230; laissez-faire political economy on its head.</p></blockquote> <p>Mitchell Okun quotes a speech by Thurber in <em><a href="http://www.worldcat.org/title/fair-play-in-the-marketplace-the-first-battle-for-pure-food-and-drugs/oclc/12811220">Fair Play in the Marketplace</a>:</em></p> <blockquote><p>The time for a <em>laissez faire</em> policy is past. Our civilization is constantly growing more complex and the forces which now control it must themselves be controlled and directed or disastrous collisions will surely result. &#8230; I am opposed to the centralization of power either in the hands of Government or of corporations, but centralization is a <em>fact</em> staring us in the face and we must see if we cannot make one form of centralization neutralize the other. (105)</p></blockquote> <p>The back-and-forth of legal decisions provides evidence that the late nineteenth century was not incontestably in favor or a pure &#8220;free market&#8221;; in fact, the case most associated with the doctrine &#8212; <em>Lochner v. New York </em>&#8212; is from 1905.</p> <p>Before <i>Allgeyer v. Louisiana</i> in 1897 gave us the first Supreme Court decision that constitutionalized liberty of contract (and started the so-called <em>Lochner</em> era, which lasted well into the late 1930s), holdings like that in the so-called <em>Slaughter-House Cases</em> (1873) actually supported government intervention in economic matters, at least in cases involving public health (<em>Lochner </em>itself was also very much a public-health case).</p> <p>Even before the Civil War fundamentally shifted power towards the federal government, laws in 1842 and 1848 attempted to regulate imports of &#8220;indecent and immoral&#8221; materials and substandard drugs, respectively (Okun 13-14). (The first law would become the basis of the later so-called &#8220;Comstock Acts&#8221; that prohibited contraception, and the second presaged the eventual creation of what would become the FDA in 1906).</p> <p>By the time of the Civil War, in both England and America, laws were passed against the adulteration of food and drugs (though usually at the state level in the U.S.); these suggest  &#8220;an increasing tendency to set aside the belief in laissez-faire&#8221; (30), even as that belief would eventually triumph &#8212; in a limited form and for a relatively brief time &#8212; at the turn of the century. This also marked, according to Lawrence M. Friedman&#8217;s <em>A History of American Law, </em>a move away from the traditional common-law doctrine of <em>caveat emptor </em>and towards the civil law&#8217;s <em>caveat venditor</em> approach.</p> <p>Soon after the Civil War, American states and cities turned an even more careful eye on the practices of the increasingly industrialized and depersonalized food and drug market. New York&#8217;s Metropolitan Board of Health, for example, was created in 1866, and granted vast &#8220;autocratic&#8221; powers to create and enforce its own &#8220;sanitary legislation&#8221; (Okun 35). The New York state trial court tried to check this power in 1867, but New York&#8217;s highest court reversed that decision in 1868, upholding the Board&#8217;s new powers (40).</p> <p>In a similar vein, the United States Supreme Court upheld Louisiana&#8217;s forced relocation of butchers in New Orleans &#8212; along with the creation of a new monopoly company to manage them &#8212; in 1873&#8217;s <em>Slaughter-House Cases, </em>despite the obvious interference with the freedom of the butchers to run their operations their own way.</p> <p>The Gilded Age, for all its triumphant capitalism, was also an era in which a &#8220;tempting new concept of government <em>in loco parentis </em>was beginning to emerge&#8221; (Okun 185). While certainly couched in terms of protecting the public &#8212; partly, according to Friedman, to &#8220;convince judges that some public interest was at stake,&#8221; regulations were often sought by professionals and businesses in order to protect their &#8220;little citadels or privilege&#8221; and felt they could &#8220;generate business if they drove out dishonest promoters&#8221; (186-87).</p> <p>The story of the Gilded Age, like the story of the nineteenth century as a whole, is thus not the simple &#8220;triumph of contract&#8221; and unbridled <em>laissez-faire</em> capitalism it is sometimes portrayed as. Instead, it is a more complex back-and-forth of competing interests and ideas. One of those competing interest were represented by businessmen like Thurber, who sought to use government regulation to reign in the revolutionary changes brought by capitalist industry and thus to preserve old, conservative ideals of republican virtue and small-scale rural values.</p> "New-Fashioned Quarantine (from 1916)" https://inpropriapersona.com/articles/new-fashioned-quarantine-1916/ Wed, 22 Oct 2014 22:31:50 +0000 0fef3f37c4e49f240d19a158448575fe <p>In 1916, Herbert Winslow Hill published <em><a href="http://books.google.com/books?hl=en&amp;lr=&amp;id=MwYUAAAAIAAJ">The New Public Health</a>, </em>an attempt to update old ideas about public health &#8212; focused on the efforts of &#8220;sanitarians&#8221; to push &#8220;cleanliness,&#8221; even as the formerly standard &#8220;miasma&#8221; theory of disease was supplanted, at the individual, home, and city level &#8212; and replace it with methods that targeted the transmissions methods of specific diseases.</p> <p>He emphasizes throughout that only specific kinds of &#8220;dirt&#8221; and specific carriers of diseases are the problem, and that effectively countering the spread of disease requires rational targeting of these problems.</p> <p>One traditional method he discusses is quarantine &#8212; but Hill gives it a rational spin, characteristic of early twentieth century optimism and trust in science and expertise. Old-fashioned quarantine, he says, took only &#8220;<em>part</em> of the infected, and also took the well with the sick&#8221; (190-91).</p> <blockquote><p>Thus, not alone were many infected persons overlooked and many uninfected persons wrongly held, but also the disease spread oftentimes from those infected who were in the net to the uninfected who were kept in with them, so that old fashioned quarantine, while it protected the community but partially, meant often poverty, disease, and death to those caught in its toils. No wonder the very name of quarantine makes many people shudder. (191)</p></blockquote> <p>&#8220;New-fashioned quarantine,&#8221; on the other hand, &#8220;is not a blanket method&#8221; (191). Instead, &#8220;it requires definite detailed knowledge applied with care and patience, not mere force&#8221; (191).</p> <p>Hill argues that it is not quarantine itself that people find unjust, but rather the unjust application of it &#8212; &#8220;the thing that chafes and riles the average person is not restriction but unjust restriction&#8221;&#8211; and this can be corrected &#8220;through the methods of epidemiology, of the laboratory, and of the vital statistician, skilfully combined by experts&#8221; (192).</p> <p>Concerns about individual rights and the autocratic authority of the state are thus effectively dealt with through a fair and just application of reason:</p> <blockquote><p>Set all others free, but keep these persons, not in old-fashioned quarantine, but under such control that their discharges will not pass to others; and do not measure the length of that control by fixed time limits, blind and unjust as quarantine itself, but measure it wholly by the length of time the germs remain in or on the body. The moment that the germs have left those persons they are no longer harmful and they should be freed. (192)</p></blockquote> <p>Thus, the solution to social resistance is solved through what might be called &#8220;procedural due process,&#8221; backed up by scientific evidence and &#8220;men who know their business and do nothing else&#8221;; if started immediately, the end result would be, according to Hill, that &#8220;infectious diseases in ten years would have vanished and would have become mere history&#8221; (192).</p> "David Seipp on Themes of the Nineteenth-Century Rhetoric of Privacy" https://inpropriapersona.com/articles/david-seipp-themes-nineteenth-century-rhetoric-privacy/ Tue, 21 Oct 2014 01:20:40 +0000 3b9c0b27109bf7d59ad74b0491427c0b <p>In his late 1970s work, <a href="http://pirp.harvard.edu/pubs_pdf/seipp/seipp-p78-3.pdf">The Right to Privacy in American History</a>, <a href="http://www.bu.edu/law/faculty/profiles/fullcvs/full-time/seipp_d.shtml">David J. Seipp</a> argues that the &#8220;unity of the privacy phenomenon&#8221; in the nineteenth century came not from a singleness of motive, but rather from &#8220;a unity of language&#8221; (Seipp 116).</p> <h3>Sanctity</h3> <p>The &#8220;recurrent idea of sanctity&#8221; is the first theme noted by Seipp (116-17). He suggests that the &#8220;common source&#8221; of the theme &#8220;was the ascription of sanctity to letters in the post office,&#8221; citing Francis Lieber&#8217;s book on civil liberty from 1853 and a <em>New York Times</em> article from 1858 (117-18).</p> <p>As the century progressed, writers analogized telegrams to letters, and argued that too deserved &#8220;inviolable sanctity&#8221; in the face of, for example, congressional subpoenas (117).</p> <p>Later, as the census expanded in scope and details, objectors &#8220;sanctified &#8230; matters of debt and disease,&#8221; citing King David&#8217;s troubles when &#8220;number[ing] his people&#8221; (117)</p> <p>The &#8220;sanctity of private life&#8221; was contrasted with the practices of newspaper reporters and photographers too, in articles from 1876-1903, including Warren and Brandeis&#8217; famous 1890 law review article on privacy (117). Even biographers were faulted in the 1880s for &#8220;violating &#8216;the sacred recesses of saintly lives'&#8221; and &#8220;the &#8216;sacredness of personality'&#8221; (118).</p> <p>Other zones of private life also became sanctified in the late nineteenth century (118). Childbirth, for example, was &#8220;most sacred,&#8221; according to Seipp&#8217;s citation to an 1881 case in which a court in Michigan held that a woman has &#8220;a legal right to the privacy of her apartment&#8221; (118). Critics of the proposed income tax argued that financial matters were some of &#8220;those affairs of the individual which were in a sense sacred&#8221; (118).</p> <h3>Domesticity</h3> <p>The &#8220;rhetoric of domesticity&#8221; was deeply entwined with that of sanctity. Seipp traces the legal origins to the &#8220;British legal proverb, &#8216;A man&#8217;s house is his castle'&#8221; (119). The <em>New York Times</em> emphasized the maxim when discussing census-taking in 1875, and the <em>Tribune</em> did so in 1877 when it compared &#8220;searches of houses to searches of private telegrams&#8221; (119).</p> <p>According to Seipp, the rhetoric connected to &#8220;two key concepts &#8212; private property and familial privacy&#8221; (120). The &#8220;right to quiet and exclusive enjoyment of property&#8221; emerged early on in America, and property considerations continued to animate &#8220;many assertions of a right to privacy&#8221; in the late nineteenth and early twentieth centuries (120).</p> <p>But the most potent formulation of privacy and property came not in regards to &#8220;just any piece of real estate, but specifically to the home and to home life&#8221; (120-21). Sepia cites social historian David Kennedy&#8217;s 1975 work to suggest that urbanization and industrialization, plus the Civil War and territorial expansion, led to a greater sense of familial privacy&#8221; (121).</p> <h3>Individualism</h3> <p>Seipp argues that the &#8220;inviolable personality of the individual&#8221; comprised the third, and likely most important, &#8220;major theme of late nineteenth century privacy rhetoric&#8221; (121). Cooley, who wrote influential legal treatises and advocated for protecting telegrams as if they were postal letters, wrote that the &#8220;right to one&#8217;s person may be said to be a right of complete immunity; to be let alone&#8221; (121), heavily influencing Warren and Brandeis&#8217; &#8220;right to privacy&#8221; (121). Sepia connects this to arguments for a &#8220;right to reputation&#8221; directed against newspapers as well (121-22). In discussing the &#8220;American habit of respect for the personality and the reputation of private citizens&#8221; in citing William James&#8217; 1890 book on psychology and his praise of &#8220;the well-known democratic respect for the sacredness of individuality&#8221; (122).</p> <p>Relatedly, but even more importantly, says Seipp, was the relationship of the rhetoric of privacy &#8220;to legal traditions of personal rights &#8212; similar to the relationship of rhetoric concerning domesticity to traditions of property rights&#8221; (123). In fact, Seipp says, the &#8220;right to privacy&#8221; was nourished by both traditions of property and personal rights, even though these &#8220;were frequently in conflict through the nineteenth century in America&#8221; (123).</p> <p>Thus, he says, legal scholars from roughly 1890-1920 &#8220;derived privacy from &#8216;the right of personal liberty'&#8221; (123). Others argued that &#8220;the peace and quiet of the home&#8221; and &#8220;the reputation of the individual&#8221; were in fact &#8220;property rights of the highest value&#8221; (123-24).</p> <p><em>For more discussion of privacy in America and the law, see David Seipp, <a href="http://pirp.harvard.edu/pubs_pdf/seipp/seipp-p78-3.pdf">The Right to Privacy in American History,</a> pp. 116-124 (1977-78).</em></p> "Sex and Eugenics Sterilization" https://inpropriapersona.com/articles/sex-eugenics-sterilization/ Fri, 10 Oct 2014 18:55:32 +0000 c379a10cba7c522eae28a7b36c85872a <p><a href="https://www.amazon.com/Choice-Coercion-Sterilization-Abortion-American/dp/0807855855?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0807855855" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/51Es9ewk0zL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/51Es9ewk0zL.jpg" alt="Choice and Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare (Gender and American Culture)" /> </a><br /> In looking through Johanna Schoen&#8217;s 2005 book, <em><a href="https://www.amazon.com/Choice-Coercion-Sterilization-Abortion-American/dp/0807855855?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&#038;tag=commentinprop-20&#038;linkCode=alb&#038;camp=2025&#038;creative=165953&#038;creativeASIN=0807855855">Choice &amp; Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare</a>,</em> it appears that, although <a title="Eugenics" href="http://en.wikipedia.org/wiki/Eugenics" target="_blank" rel="wikipedia">eugenics</a>-based sterilization procedures in the early-to-mid twentieth century appear to have targeted women more than men, men were also sterilized through these programs.</p> <p>Rationally, it should be unsurprising that men were targeted as well: the basic eugenics justification for sterilization applied equally to men as well as women (in fact, since an individual male is able to produce many more children than an individual female, sterilization might, on a purely rational basis, even be considered more critical for men than for women). Nonetheless, my readings so far on the subject strongly suggest that so-called &#8220;eugenics boards&#8221; targeted women more often.</p> <p>Thus, in practice, particularly when applied by these non-scientific &#8220;eugenics boards&#8221; &#8212; local committees charged by state laws with sterilization decisions &#8212; women were targeted more often than men: &#8220;Sixty-one percent of eugenic sterilizations nationwide and 84 percent in North Carolina were performed on women,&#8221; according to Schoen (95). &#8220;<a title="Feeble-minded" href="http://en.wikipedia.org/wiki/Feeble-minded" target="_blank" rel="wikipedia">Feeblemindedness</a>&#8221; was associated by eugenics scientists with sexual promiscuity; eugenics boards treated sexual promiscuity as essentially a proxy identifier of &#8220;mental defects&#8221; (94-95). And since &#8220;promiscuity&#8221; was especially identified as a problem for women outside of marriage, these individuals became &#8220;the main target of sterilization programs&#8221; (95).</p> <p>Commonly, especially as eugenics boards became tied to welfare programs, pregnancy and the poverty that often accompanied it became the problem that sterilization proponents targeted, even if they still couched their decisions in terms of &#8220;feeblemindedness&#8221; and heredity. Since a pregnancy outside of marriage provided a visible sign of promiscuity and mental defectiveness, women were easier to identify as potential sterilization targets than men, contributing as well to the unequal rates of sterilization.</p> <p>Still, when identified, men also became targets for sterilization, although not always for good reasons. Thus, eugenics boards wished to sterilize &#8220;sexually aggressive men&#8221; not necessarily because it would stop attacks on women, but rather &#8220;so that if [they] made an attack [they] would be harmless&#8221; &#8212; because the potential harm to <em>society</em> came not from the &#8220;physical or psychological harm it caused its victims, but rather in the possibility that it might cause pregnancy&#8221; (102).</p> <p>Some sterilization proponents may indeed have been more interested in reducing burdens on society created by pregnancies outside of marriage. Others, however, may not have understood what the effects of sterilization would be, and may have, logically or not, seen it as protection against abuse: &#8220;In the imagination of parents and social workers &#8230; sterilization promised much more than it could deliver&#8221; (101). Some parents saw it a possible cure for mental problems, others as protection against rape and incest (101-02). But the result was to render &#8220;illicit and unwanted sexuality invisible&#8221; (102).</p> <p>Before the 1950s, men seem to have been targeted more often for sterilization than in later decades, possibly because of ease of identifying the institutionalized &#8220;feebleminded,&#8221; male or female. Thus, &#8220;Patrick,&#8221; a nineteen-year old male inmate of the Caswell Training School &#8212;- identified as having an &#8220;IQ of thirty-nine&#8221; and considered to be &#8220;a sex problem&#8221; &#8212; was sterilized in 1943, while his ten-year old sister was not (87). The ability of directors of mental institutions, as well as social workers, to submit sterilization petitions, facilitated this identification and targeting of the institutionalized,</p> <p>By the 1950s, after eugenic science had been largely discredited, involuntary sterilization programs grew, particularly in certain states where they were tied to an increase in welfare rolls (108). Pregnancy-based identification of candidates for sterilization, justified on the basis of reducing welfare burdens and initiated by social workers, targeted women vastly more often than men. Additionally, non-discrimination requirements in welfare disbursement, along with other societal shifts, resulted in a growing association between fertility and non-white women, in particular (108-09). Black mothers, in particular, were blamed for &#8220;urban plight, poverty, and social unrest,&#8221; and were correspondingly targeted for sterilization (109). The possibility of sterilizing men, black or white, was apparently ignored.</p> "The “third-party problem”: one reason telegrams were not constitutionally protected" https://inpropriapersona.com/articles/third-party-problem-one-reason-telegrams-constitutionally-protected/ Fri, 31 Jan 2014 19:44:47 +0000 c4e7cd3c1f1e5ea9e971a337e888c998 <p><img class="alignright wp-image-6152 size-medium" src="http://res.cloudinary.com/krisnelson/image/upload/h_203,w_300/v1514416093/transmission-lines_ielil5.jpg" alt="Transmission lines " width="300" height="203" />Unlike postal mail or, later, the telephone, telegrams never received constitutional protection. Yet they were the quintessential nineteenth-century technology of communication, used extensively for business, government, and personal communication, much of which both senders and receivers would have wished to keep to themselves.</p> <p>Why, then, did the courts not accept the analogies to postal mail offered by jurists like <a title="An argument for the “Inviolability of Telegraphic Correspondence”" href="https://inpropriapersona.com/an-argument-for-the-inviolability-of-telegraphic-correspondence/">Thomas Cooley</a>? Were not the privacy interests similar?</p> <p>The underlying technology of the telegraph cut against secrecy. Rather like most electronic mail today, telegrams transited between sender and receiver with the aid of a third party who necessarily had access to the contents of the communication. This is, in essence, the &#8220;<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138128">third-party problem</a>,&#8221; and it continues to be a concern for courts when deciding on protections for email today.</p> <p>This contrasts with postal mail, in which &#8212; except for postcards—carriers only know what today we would call &#8220;metadata&#8221;: the recipient or destination and, usually but not necessarily, the sender.</p> <p>Additionally, and again similar to email today, many companies kept copies of messages they handled. Google does this so you can have access from any device; Western Union did it primarily to verify accuracy and honesty in transmission.</p> <p>The presence of a third party in the process cut against arguments for maintaining the privacy of telegrams in the face of requests by others, particularly the government, for access. After all, if both sender and receiver had already voluntarily allowed telegraph operators to read their messages, what kind of secrecy could they reasonably expect?</p> "Universities UK, sex segregation, and the public-private distinction" https://inpropriapersona.com/articles/uk-sex-segregation-public-private-distinction/ Fri, 13 Dec 2013 18:00:41 +0000 9dc304d042e1034843ada12526881469 <p><a href="http://www.flickr.com/photos/pdc/8130359175"><img class="size-medium wp-image-6101 alignright" title="&quot;Harriet Harman, Sex Discrimination in School How to Fight It&quot; by Damian Cugley. CC BY-SA 2.0." alt="&quot;Harriet Harman, Sex Discrimination in School How to Fight It&quot; by Damian Cugley. CC BY-SA 2.0." src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514416098/discrimination-in-school_zcwkzj.jpg" width="300" height="300" /></a>The shared legal heritage of the United States and the United Kingdom means that we share many broad legal principles. A distinction between <em>public</em> and <em>private</em> is one of them. Another is our shared approach to balancing various interests and rights (though we may come to different results at time, as with hate speech).</p> <p>Misunderstanding the different balances required in private vs. public spheres was one of the fundamental misunderstandings of the recent Universities UK <a title="External Speakers in Higher Education Institutions" href="http://www.universitiesuk.ac.uk/highereducation/Pages/Externalspeakersinhighereducationinstitutions.aspx">guidance</a>, which argued that speakers&#8217; freedom of religion and speech could trump anti-discrimination laws at on-campus debates &#8212; meaning that audiences might be segregated by sex. Universities UK argued that religious &#8220;<a href="http://www.telegraph.co.uk/news/religion/10514551/Official-watchdog-says-university-sex-segregation-plans-not-permissible.html">societies and other groups were entitled to practice gender segregation at public meetings on campus.</a>&#8221;</p> <p>Why? Well, because it was not <em>per se</em> putting women &#8220;at a disadvantage&#8221; (see the <a title="Equality Act 2010" href="http://www.legislation.gov.uk/ukpga/2010/15">Equality Act 2010</a>) as compared to men. From <a href="http://www.universitiesuk.ac.uk/highereducation/Documents/2013/ExternalSpeakersInHigherEducationInstitutions.pdf">page 27</a> of the guidance:</p> <blockquote><p>On the face of the case study, assuming the side-by-side segregated seating arrangement is adopted, there does not appear to be any discrimination on gender<br /> grounds merely by imposing segregated seating. Both men and women are being treated equally, as they are both being segregated in the same way.</p></blockquote> <p>In other words, Universities UK argues that side-by-side seating is a &#8220;separate but equal&#8221; approach that does not violate the Equality Act. This is a disingenuous attempt to get around clear legal standards in regards to segregation. Side-by-side segregation is no less inherently discriminatory than other forms of segregation.</p> <p>In terms of balancing rights and interests, Universities UK argued that the promotion of freedom of speech &#8212; that is, getting religious speakers to campus who would not come unless audiences were segregated &#8212; was more important than prohibiting gender segregation. From <a href="http://www.universitiesuk.ac.uk/highereducation/Documents/2013/ExternalSpeakersInHigherEducationInstitutions.pdf">page 28</a> of their guidance:</p> <blockquote><p>concerns to accommodate the wishes or beliefs of those opposed to segregation should not result in a religious group being prevented from having a debate in accordance with its belief system.</p></blockquote> <p>Put differently, mere &#8220;wishes or beliefs&#8221; in secular values (like anti-discrimination) are trumped by religious beliefs.</p> <p>Section 8 of the &#8220;<a href="http://www.universitiesuk.ac.uk/highereducation/Documents/2013/ExternalSpeakersLegalOpinion.pdf">Note of Advice</a>&#8221; accompanying the guidance argues that Article 9 of the European Convention on Human Rights (freedom of religion) and Article 10 (freedom of expression) trumps &#8220;freedom of association&#8221; (Article 11):</p> <blockquote><p>These two important rights must be balanced against a right of freedom of association of those who do not wish to be segregated while hearing a particular speaker.</p></blockquote> <p>As with most things in the law, one must indeed balance rights and interests, including freedom of religion and the right to be free from discrimination. But the balancing done in the Note misapplies the law, most importantly because it completely neglects the distinction between public and private spaces.</p> <p>In public spaces, freedom of religion is not the right to force others to comply with one&#8217;s religious beliefs. Freedom of expression protects against certain governmental restrictions on speech. It does not guarantee a forum nor an audience.</p> <p>The Note misunderstands these rights, particularly as they apply in public spaces like universities, and thus inevitably balances them inappropriately. Britain&#8217;s Equality and Human Rights Commission makes this clear in their response to Universities UK, stating that gender segregation as articulated by Universities UK is &#8220;not permissible&#8221; under UK law.</p> <p>The Note&#8217;s particular balancing of rights and interests would make more sense if applied in <em>private </em>spaces, where the rights of the owners or lessee are strongest, and the rights of visitors are weakest. (Although even in private spaces, anti-discrimination laws can still apply &#8212; think of employment discrimination in privately owned offices.)</p> <p>But universities are <em>public</em> (in the sense of taxpayer funded), not private. At public events anti-discrimination protections are at their strongest, and the imposition of one group&#8217;s religious rules on <em>everyone else</em> is not permissible. Thus, at public events, such as a debate held on a university campus, the result is different:</p> <blockquote><p>However, in an academic meeting or in a lecture open to the public it is not, in the commission’s view, permissible to segregate by gender.</p></blockquote> <p>The Commission provided an exception to the general rule that sex discrimination is illegal in public spaces: universities may expressly designate certain spaces for religious activities. This alters the balance of rights and interests in those spaces:</p> <blockquote><p>Equality law permits gender segregation in premises that are permanently or temporarily being used for the purposes of an organised religion where its doctrines require it.</p></blockquote> <p>In short, sex segregation in public spaces (like those at state-funded universities) violates UK law, and neither freedom of religion nor freedom of expression trumps this.</p> "Musings on law, technology, and privacy" https://inpropriapersona.com/articles/theoretical-musings-privacy-law-technology/ Sat, 07 Dec 2013 22:32:25 +0000 c6238b33b1f22eb6b902d0f32fe6fe1a <p>I&#8217;ve been working on my dissertation for a few months now (it looks at American privacy law over some 150 years, and investigates how technology interacts with that law). Some of that work will emerge here in draft form eventually, but for now I&#8217;ve been thinking about the theoretical/critical framework for my work. Much of this framework will be implicit &#8212; since I&#8217;m writing a dissertation in history &#8212; but it will guide me nonetheless. It will develop throughout the writing process, but here are some initial thoughts.</p> <h3>On technology and law</h3> <p>Technology and law are mutually constitutive. They each enable the other. Technology does not determine the future &#8212; or the law that will govern it &#8212; but neither does law determine the shape or direction of technology. But changes in technology will change the law; changes to the law will affect technology. But these changes are never determined or fully predictable.</p> <p>For example, the boom in newspaper gossip columns, and especially the accompanying photography, drove&nbsp;Samuel Warren and Louis Brandeis to <a title="“The Right to Privacy” by Warren and Brandeis" href="https://inpropriapersona.com/the-right-to-privacy-by-warren-and-brandeis/">change the direction of privacy law</a> in the United States in 1890. But similar conditions &#8212; technological and legal &#8212; existed in England at the same time, and yet British law <a title="Law of privacy vs. confidentiality in the nineteenth century" href="https://inpropriapersona.com/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">took another path</a>, staying with the relationship-focused law of confidentiality rather than moving to a focus on an individual&#8217;s &#8220;inviolate personality.&#8221; Technology in both cases produced the necessity of legal change, but failed to determine its form.</p> <h3>On privacy</h3> <p>The social conception of privacy varies across time and cultures &#8212; and technology has influenced that conception. And it is not just since the Industrial Revolution that technology has intruded &#8212; although the pace of change in the last 150 years has certainly outpaced the change over the last 15,000. Settlement and house-building impacted the idea of privacy, as did urbanization and population growth. But privacy, as with other social constructions like marriage, family structure, and so on, varies across not just time but also place. Technology is far from the only variable at play, but technology has consistently forced societies to question what privacy means, what it should look like, and what its value is.</p> <p>I make little attempt to define exactly what privacy is; rather I focus on whatever law and society seems to treat as if it were related to privacy.</p> <p>But I will say that privacy seems to consist of&nbsp;<em>at least</em> two different, but related, strands, at least within the American legal context: privacy-as-liberty and informational secrecy. The former led to decisions like <em>Griswold v. Connecticut</em> and&nbsp;<em>Roe v. Wade,</em> while the latter led to HIPAA, for example, and wiretap cases like&nbsp;<em>Katz v. United States</em> (a case that illustrates the relationship between liberty and information privacy).</p> <p>These are some of the beginning analytical points of my investigation, and will continue to influence the direction of my historical work and my historical narrative.</p> "NSA spying is not clearly unconstitutional" https://inpropriapersona.com/articles/nsa-spying-is-not-clearly-unconstitutional/ Sun, 11 Aug 2013 23:13:33 +0000 395b8b9742902ca5c76d6974cd3d4246 <p><img class="alignright size-medium wp-image-6025" alt="NSA Sign" src="http://res.cloudinary.com/krisnelson/image/upload/h_225,w_300/v1514416104/nsa_sign_b2c2wf.jpg" width="300" height="225" />I&#8217;ve been noticing a trend to call the activities of the <a href="http://en.wikipedia.org/wiki/National_Security_Agency">NSA</a> &#8212; as revealed by <a href="http://en.wikipedia.org/wiki/Edward_Snowden">Edward Snowden</a> &#8212; &#8220;clearly unconstitutional.&#8221; I disagree.</p> <p>While I think at least some of the <a href="http://www.aclu.org/blog/national-security/guide-what-we-now-know-about-nsas-dragnet-searches-your-communications">NSA&#8217;s activities</a> <em>ought</em> to be unconstitutional, I don&#8217;t believe they <em>clearly violate</em> the United States <a href="http://en.wikipedia.org/wiki/United_States_Constitution">Constitution</a> (the Fourth Amendment in particular) as it has been interpreted by the courts. <em>(Caveat: as usual, the devil is in the details, and details are difficult to confirm.)</em></p> <p><strong>But some of their actions certainly violate the spirit of it! </strong>Even an originalist understanding like Justice Scalia&#8217;s lends support to this &#8212; how is the massive NSA operation different from colonial general warrants and <a href="http://en.wikipedia.org/wiki/Writ_of_assistance">writs of assistance</a> used by agents of King George? (See also <a href="https://www.eff.org/files/filenode/att/generalwarrantsmemo.pdf">this memo</a> at the EFF site.)</p> <h4>Reasonable Expectation of Privacy and Telephone Wiretaps</h4> <p>Perhaps ironically, the current problem with claiming constitutional protection is due to relatively recent interpretations of the Fourth Amendment in light of telephone wiretaps and the Court&#8217;s attempts to limit their reach. There is no &#8220;reasonable expectation of privacy&#8221; in information willingly shared with a third party, like a telecommunications company. Thus, when it comes to location data accessed by police without a warrant, the Fifth Circuit <a href="http://www.nytimes.com/2013/07/31/technology/warrantless-cellphone-tracking-is-upheld.html">recently ruled</a> that</p> <blockquote><p>consumers knowingly give up their location information to the telecommunications carrier every time they make a call or send a text message on their cellphones.</p></blockquote> <p>This is why so-called &#8220;<a href="http://en.wikipedia.org/wiki/Pen_register">pen register</a>&#8221; information &#8212; numbers dialed, for example &#8212; is accessible to government agencies without a warrant.  In the words of the Supreme Court in <a href="http://en.wikipedia.org/wiki/Smith_v._Maryland">Smith v. Maryland</a>, 442 U.S. 735, 744 (1979), Fourth Amendment protection is lost when users have &#8220;voluntarily conveyed numerical information to the telephone company.&#8221;</p> <h4>Applied to Electronic Mail</h4> <p>Similar logic is applicable to <em>at least</em> the header information &#8212; sender, recipient, date, IP, etc. &#8212; of emails, for similar reasons. And while the actual internal message of a telephone call is protected &#8212; callers reasonably expect no one, not even the phone company, to listen to it &#8212; email has generally been considered more like a post card or a telegram, open to reading by third parties. Google, after all, scans email for keywords and displays ads. Email &#8212; rather like the earlier technology of telegrams &#8212; has not been granted constitutional protection by the Supreme Court, although it does have some statutory protection in limited circumstances (see <a href="http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act">ECPA</a>, for example).</p> <p>Should it be like this?</p> <p><strong>No, it should not. Congress should create greater statutory protections for today&#8217;s communications.</strong> Indeed, doing this might well lead the courts to eventually extend the Constitution as well. <a href="https://inpropriapersona.com/constitutionalizing-the-sanctity-of-the-mails/">It happened before with postal mail</a>.</p> <h4>Big Data Changes Nothing</h4> <p>Doing this kind of thing in bulk, &#8220;Big-Data&#8221; style, does not clearly change anything under current Supreme Court decisions, even though effectively more information can be inferred than from small-scale analysis. I expect most courts to continue to apply old frameworks even in the face of these new possibilities.</p> <p>Should they?</p> <p><strong>No. The ability to reinterpret and distinguish precedent is the strength of an <em>ever-evolving</em> common-law system like that of the United States. </strong>With apologies to Justice Scalia, American courts have in the past evolved their understandings of the Constitution based on contemporary concerns &#8212; and they should continue to do so.</p> <h4>But Law Should Evolve</h4> <p>Despite my belief that at least some of what the NSA is doing <em>ought</em> to be covered by the Fourth Amendment, I just don&#8217;t think that&#8217;s where the law is right now. Even more certainly, I do not see how anything that&#8217;s been revealed <em>clearly violates the Constitution.</em> But the only way to push the law forward is through legislation and court challenges &#8212; and fortunately, I think, the U.S. Constitution, as interpreted through out common-law courts, is fully capable of flexing to incorporate new technologies and new challenges.</p> <p><em>Note: What about the interception of communications to and from outside the United States? That has even less constitutional protection. For more about these issues, you may consult my 2008 article, <a href="http://ssrn.com/abstract=1260035">Transnational Wiretaps and the Fourth Amendment</a>.</em></p> "The irony of liberty of contract: normalizing federal intervention" https://inpropriapersona.com/articles/the-irony-of-liberty-of-contract-normalizing-federal-intervention/ Fri, 26 Jul 2013 23:58:40 +0000 c9cec14e012684e35f7a9c68901c2230 <p><a href="http://www.flickr.com/photos/library_of_congress/2163922974"><img class="alignright size-medium wp-image-6006" alt="Socialists in Union Square May 1912" src="http://res.cloudinary.com/krisnelson/image/upload/h_221,w_300/v1514416107/socialists-in-nyc_yumjxg.jpg" width="300" height="221" /></a>In 1905, the Supreme Court held that the Fourteenth Amendment &#8212; originally intended to overturn decisions like <em>Dred Scott</em> and to restrict so-called &#8220;Black Codes&#8221; &#8212; &#8220;the general right to make a contract in relation to his business is part of the liberty of the individual protected by the &#8230; Federal Constitution.&#8221; In other words, the right to buy and sell labor through contract was a &#8220;liberty of the individual,&#8221; and was thus constitutionally protected from state interference.</p> <p>&#8220;Liberty of contract&#8221; had originally been envisioned as a means of protecting individual rights from government interference, but decisions implementing it ended up justifying federal government intervention &#8212; initially by the federal judiciary &#8212; in what had formerly been matters left to state governments.</p> <p>Liberty of contract was successfully overturned during the Depression, in <em>West Coast Hotel v. Parrish</em>, 300 U.S. 379 (1937), which finally allowed for a general minimum wage in Washington State &#8212; and thus overturned the maximalist version of freedom of contract as represented by decisions like <em>Allgeyer</em> and <em>Lochner</em>. Even though this decision permitted action by the State of Washington, similar logic would be used by courts to approve Roosevelt&#8217;s federal New Deal programs. Thus, the Court upheld the National Labor Relations Act (<em>N.L.R.B. v. Jones &amp; Laughlin Steel Co.</em> [1937]) and the Social Security Act (<em>Helvering v. Davis</em> [1937]).</p> <p>In other words, liberty of contract established a precedent of government intervention at the national level, a precedent that survived the demise of the liberty-of-contract rule in the late 1930s. Ironically, then, in the twentieth century federal interventions based on liberty of contract helped normalize and spread federal; power; instead of protecting individual liberty, liberty-as-contract came to enable government intervention.</p> <p>Whether this federal intervention to establish and protect liberty helps America maintain the tradition of classical liberalism or undermines it is still subject to intense, and acrimonious, political debate, and in many ways separates modern American conservatives from modern American liberals. It also illustrates some of the challenges of our federal system.</p> "“I can’t help myself, I’m a man” – rape apologia, circa 1840" https://inpropriapersona.com/articles/i-cant-help-myself-im-a-man-rape-apologia-from-1840/ Mon, 08 Jul 2013 16:05:47 +0000 b6620fa7170aab78276f29521b628639 <p><a href="http://www.amazon.com/gp/product/0816526001/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0816526001&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=7SLBHEXCY2DIESPD" rel="nofollow"><img class="alignright" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0816526001&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /></a><img class="alignright" style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0816526001" alt="" width="1" height="1" border="0" />Does this defense sound familiar to anyone else?</p> <p>In California in 1840, Cornelio López entered the room of María Ygnacia Elizalde and attempted to force her to have sex with him: &#8220;Why don&#8217;t you want to have relations with me? Haven&#8217;t you already been with others?&#8221; She filed a criminal complaint, with her husband presenting the case for the prosecution.</p> <blockquote><p>The defense, headed by Juan Cristóbal Vejar, argued that Elizalde&#8217;s biological sex as a female and López&#8217;s as a male were to blame for his behavior: &#8220;Man is susceptible to the inclinations of the female sex,&#8221; Vejar argued. &#8220;That the defendant approached an honorable woman is not a crime.&#8221; Lopez&#8217;s behavior may have been improper, but it was not criminal, and it was initiated by impulses of the flesh beyond his control.</p></blockquote> <p>(From p. 37 of <a href="http://www.amazon.com/gp/product/0816526001/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0816526001&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=7SLBHEXCY2DIESPD" rel="nofollow">Negotiating Conquest: Gender and Power in California, 1770s to 1880s</a><img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0816526001" alt="" width="1" height="1" border="0" /> by Miroslava Chávez-García and the Alcalde Court Records at the Natural History Museum of Los Angeles County, vol. I, pp. 506-62 (1840).)</p> <p>If you need modern examples of what I&#8217;m talking about, see:</p> <ul> <li><a href="http://jezebel.com/5929544/rapists-explain-themselves-on-reddit-and-we-should-listen">Rapists Explain Themselves on Reddit, and We Should Listen</a> via jezebel.com</li> <li><a href="http://manboobz.com/2013/03/17/raw-story-on-the-top-5-rape-apologist-reactions-to-the-steubenville-verdicts/">Raw Story on The Top 5 Rape-Apologist Reactions to the Steubenville Verdicts</a> via manboobz.com (see post and comments)</li> </ul> "Sidewalk chalk on trial: the Jeff Olson jury acquittal" https://inpropriapersona.com/news/2013/chalk-vandalism/ Thu, 04 Jul 2013 00:02:25 +0000 66fbc22465a9de7d6058f682a5bcfb25 <figure id="attachment_5808" style="max-width: 300px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/58688718@N00/168397516"><img class="size-medium wp-image-5808" alt="Sidewalk Chalk by thinktk via Flickr (CC BY-NC 2.0) " src="http://res.cloudinary.com/krisnelson/image/upload/h_200,w_300/v1514416544/sidewalk-chalk_hospat.jpg" width="300" height="199" /></a><figcaption class="wp-caption-text">Sidewalk Chalk by thinktk via Flickr (CC BY-NC 2.0)</figcaption></figure> <p>The key reason I think the jury&#8217;s acquittal of a San Diego man prosecuted for writing on sidewalks with chalk did not necessarily need to be &#8220;jury nullification&#8221;? After all, Jeff Olsen admitted he did write on city sidewalks. Why then? Because the prosecutor has to prove <em>every element</em> of a crime <a href="http://en.wikipedia.org/wiki/Reasonable_doubt">beyond a reasonable doubt</a> &#8212; and if they don&#8217;t, then a jury is expected to acquit.</p> <p>(Of course, there could be as many reasons for acquittal as there are jurors, so some of them could have decided all the elements were met, and still voted to acquit.)</p> <h3>The Elements of Vandalism</h3> <p>So what are the elements of <a href="http://law.onecle.com/california/penal/594.html">California Penal Code Section 594(a)</a>, as defined by the <a href="http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf">instructions given to the jury</a> (CALCRIM 2900)? The prosecutor must prove, beyond a reasonable doubt, that the defendant:</p> <ol> <li>had malicious intent (vandalism is a specific-intent crime), meaning either <ol> <li>intentionally did a wrongful act</li> <li><em><strong>or</strong></em> acted with the unlawful intent to annoy or injure someone else</li> </ol> </li> <li><em><strong>and</strong> </em>damaged <strong><em>or</em> </strong>destroyed <em><strong>or</strong></em> defaced <ol> <li>with graffiti <em><strong>or</strong></em></li> <li>with other inscribed material</li> </ol> </li> <li><em><strong>and</strong></em><strong> </strong>real <em><strong>or</strong> </em>personal property</li> <li><em><strong>and</strong></em><strong> </strong>of someone else.<strong></strong></li> </ol> <h4>Elements 3 and 4: a city-owned sidewalk</h4> <p>A city-owned sidewalk satisfies elements three and four (incidentally, the <a href="http://law.onecle.com/california/penal/594.html">statute itself</a> provides a specific explanation that publicly owned property &#8212; like a sidewalk &#8212; does not belong to the defendant).</p> <h4>Element 2: Defacement</h4> <p>Element two is more interesting. The sidewalk was neither damaged nor destroyed, so we must focus our analysis on &#8220;defaced with graffiti or other inscribed material.&#8221; Can water-soluble chalk &#8220;deface&#8221; a sidewalk? The statute says this phrase means the following:</p> <blockquote><p>(e) As used in this section, the term &#8220;graffiti or other inscribed<br /> material&#8221; includes any unauthorized inscription, word, figure, mark,<br /> or design, that is written, marked, etched, scratched, drawn, or<br /> painted on real or personal property.</p></blockquote> <p>Case law is potentially relevant here, too, as a California appeals court (<a href="http://scholar.google.com/scholar_case?case=15435982189810799791">85 Cal.App.4th 941</a>) held in 2000 that &#8220;it appears that a marring of the surface is no less a defacement because it is more easily removed.&#8221; However, the facts of that case can be <a href="http://en.wikipedia.org/wiki/Distinguishing">distinguished</a> from this one: that case involved a marker pen on a window inside a business; this one involves chalk on a public sidewalk. In other words, precedent says that impermanence is not <em>dispositive</em> of the issue. If we then go on to apply the &#8220;pragmatic&#8221; approach of the Court of Appeal &#8212; which they seem to suggest is another word for &#8220;common sense&#8221; &#8212; then a jury could easily (and supportably, under the law) see a difference between using a pen on the inside a window and using chalk outside on a sidewalk. One defaces; the other does not.</p> <h4>Element 1: Intent</h4> <p>Element one is perhaps the strongest area for the defense. (It is, I would say, one key reason why it isn&#8217;t a crime to use chalk to draw a hopscotch pattern on a San Diego sidewalk.) The statute says that, to violate the law, the perpetrator must have acted with &#8220;malice.&#8221; That is, he had to have a more specific <em>mens rea</em> than merely the intention to perform the act itself.<em> </em>The term &#8220;malice&#8221; under California law doesn&#8217;t quite mean what the dictionary indicates, but is instead defined in two specific ways. So, given California&#8217;s definitions, did Olsen act &#8220;maliciously&#8221;?</p> <p>First, did he intend to commit an &#8220;wrongful act&#8221;? This, of course, is rather circular. If Olsen&#8217;s actions are not criminal &#8212; he&#8217;s not guilty of vandalism &#8212; then he couldn&#8217;t have intended a &#8220;wrongful act,&#8221; right? Perhaps, but legal interpretation is pragmatic, not philosophical, so this argument won&#8217;t work well in court (though it might confuse jurors).</p> <p>Instead, consider whether Olsen believed in good faith that what he was doing was legal (not wrongful). This is a mistake of law defense, and in California, mistake of law can be used to negate intent for specific intent crimes like this one (see <a href="http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf">CALCRIM 3407</a> and <a href="http://scholar.google.com/scholar_case?case=13502926540145586444">People v. Flora</a> (1991) 228 Cal.App.3d 662, 669–670).  Not knowing the law is no defense &#8212; except that, if believed in good faith, belief that one&#8217;s actions are not wrong can be used to attack the specific intent to commit a wrongful act. (One might introduce his belief that the First Amendment protected his actions here, too, as part of the negation of intent rather than as defense in itself.)</p> <p>Second, did he act with the intent to &#8220;annoy or injure&#8221;? Olsen and his attorney insisted that his intent was to &#8220;inform&#8221; the public: &#8220;<a href="http://web.archive.org/web/20150610234123/http://www.10news.com/news/verdict-in-san-diego-chalk-vandalism-case-070113">His purpose was not malicious. His purpose was to inform</a>,&#8221; said Olsen&#8217;s attorney Tom Tosdal. Arguably, chalking anti-bank slogans in front of a bank <em>does</em> annoy them &#8212; but the prosecutor must prove this was Olsen&#8217;s intent <em>beyond a reasonable doubt.</em> The jury may well have found Olsen&#8217;s position credible.</p> <h3>The First Amendment</h3> <p>Finally, many have criticized the judge for disallowing a First Amendment defense. In general, it is indeed up to the judge whether the First Amendment applies, since it is in broad terms a question of law, not of fact (the latter is for the jury, the former for the judge). The judge ruled that the &#8220;<a href="http://www.sandiegoreader.com/weblogs/news-ticker/2013/jun/25/chalking-the-plank-judge-wont-allow-bank-protester/">State&#8217;s Vandalism Statute does not mention First Amendment rights</a>.&#8221; With due respect to Judge Shore, this statement misrepresents the manner in which constitutional rights are protected by defense attorneys. Sure, the statute <em>could</em> explicitly mention the First Amendment &#8212; but it certainly doesn&#8217;t <i>have to do so. The First Amendment applies to all state laws, all the time, not just when a state legislature specifically invokes it. To say otherwise is &#8230; </i><em>odd</em><i>. (I suspect this is a ruling that would have been overturned on appeal, but we&#8217;ll never know now.) </i></p> <p>If it had been allowed, how might it have looked?</p> <p>It might (as I have noted) been applied to attack the intent required by the statute. But more generally and usually, courts evaluate constitutional challenges against laws either <a href="http://en.wikipedia.org/wiki/Facial_challenge#Facial_versus_As-Applied_Challenges">&#8220;as written&#8221; or &#8220;as applied.&#8221;</a> In other words, rights can be violated not just by what a statute <em>says</em>, but also <em>who</em> prosecutors target and <em>why</em>.</p> <p>The statute, as written, is (I feel safe to say) Constitutional. It is neutral on its face, rather than targeting particular kinds of opinions (flag burning, for example). But as it appears that San Diego prosecutors have never used it before to target chalk on a sidewalk. Anti-abortion protesters used chalk messages against a Planned Parenthood clinic <a href="http://www.sandiegoreader.com/weblogs/news-ticker/2013/jun/30/is-it-the-mess-or-the-message-city-attorney-has-be/">without repercussions</a>, for example. This kind of selective prosecution <em>can</em> support an &#8220;as applied&#8221; constitutional challenge, even if the statute is itself constitutional. See for example, the non-precedential federal ruling in Orlando: &#8220;U.S. District Magistrate Judge David A. Baker wrote that protester Timothy Osmar was clearly protected by the First Amendment when he scrawled the political messages &#8212; particularly in a public plaza,&#8221; <a href="http://articles.orlandosentinel.com/2012-04-13/news/os-chalk-protester-wins-federal-lawsuit-20120413_1_chalk-free-speech-first-arrest">reported the Orlando Sentinel</a>.</p> <p>But this is one case that will never reach a higher court for a decision on the constitutional questions. It would have been interesting for us if it had, but it&#8217;s better for Jeff Olsen that a jury simply acquitted him.</p> "Of MOOCs and Luddites: teaching and the limits of technology" https://inpropriapersona.com/articles/moocs/ Mon, 01 Jul 2013 20:30:14 +0000 bd6bb198580bd27682a1af9723ca2d1f <p>It seems like everyone is talking about <a href="http://en.wikipedia.org/wiki/Massive_open_online_course">MOOCs</a>. According to proponents, massive open online courses will revolutionize higher education and turn traditional academics into the hand weavers (and potential <a href="http://en.wikipedia.org/wiki/Luddite">Luddites</a>) of the twenty-first century.</p> <p>But can the efficient delivery of talking heads to far larger audiences than permitted by even the largest lecture halls, all without the geographical constraints of physical buildings, really replace today&#8217;s in-person classrooms?</p> <p>MOOC advocates argue that traditional university education emphasizes &#8220;sage on the stage&#8221; information delivery followed by superficial assessments, all delivered at high costs to students. <a href="http://www.nytimes.com/2013/03/06/opinion/friedman-the-professors-big-stage.html">Thomas Friedman explains this perspective </a>by writing that</p> <blockquote><p>we have to get beyond the current system of information and delivery &#8212; the professorial &#8220;sage on the stage&#8221; and students taking notes, followed by a superficial assessment.</p></blockquote> <p>What Friedman describes as the &#8220;current system&#8221; of university education is, in effect, exactly what MOOCs provide. Online students watch videos of lectures &#8212; perhaps broken down into &#8220;manageable chunks&#8221; &#8212; then complete multiple choice exams. Some courses supplement this with peer discussion and peer evaluation &#8212; but no one has yet figured out how to scale expert-led discussion and expert evaluation to 1,000+ students. In short, MOOCs today work best for the same classes that 200-person lecture halls serve: those defined by information delivery and regurgitation.</p> <p>For some kinds of classes this system is a perfect replacement; for many others, it&#8217;s a second-class substitute for a classroom. Thus, delivering an introductory chemistry course, which typically emphasizes details, facts, and rote memorization, works just as well when via video on the Internet. In fact, since MOOCs can focus on only the best lecturers, these online versions will often be <em>better.</em> Testing becomes primarily a technical challenge of validating identity, since mass marking 100 multiple-choice exams is not much different for a computer than grading 10,000. If supplemented by Q&amp;A and peer assistance &#8212; replacing teaching assistants who may or may not themselves be effective teachers &#8212; even personal help may be delivered better by MOOC than by human.</p> <p>And, of course, MOOCs also compete effectively with other forms of self-learning: documentaries, public television, how-to books, and so on. In fact, the kind of learning MOOCs today permit might &#8212; I venture to say &#8212; even revolutionize many kinds of &#8220;autodidactive&#8221; learning. After all, why limit access to the best lecturers MIT or LSE can offer only to the economically and geographically privileged?</p> <p>But MOOCs fail to revolutionize &#8212; well, fail to <em>improve</em> &#8212; other kinds of traditional university classes: those that teach critical thinking, analysis, and writing. Sure, many traditional classes do use what Paulo Freire, in 1968, called <a href="http://en.wikipedia.org/wiki/Banking_education">banking education</a>:</p> <blockquote><p>Instead of communicating, the teacher issues communiques and makes deposits which the students patiently receive, memorize, and repeat. This is the &#8220;banking&#8221; concept of education, in which the scope of action allowed to students extends only as far as receiving, filing, and storing the deposits.</p></blockquote> <p>This is, in fact, the educational approach MOOC advocates criticize &#8212; and then go to deliver even more efficiently via the Internet.</p> <p><img class="alignleft size-medium wp-image-5791" src="http://res.cloudinary.com/krisnelson/image/upload/h_219,w_300/v1514416553/Graduation-at-Barnard-1913_vokxvm.jpg" alt="Graduation at Barnard College - 1913" width="300" height="218" />But it isn&#8217;t the core of a <em>good </em><a href="http://en.wikipedia.org/wiki/Liberal_arts">liberal-arts</a> education (which has little to do with &#8220;liberals&#8221; or &#8220;conservatives&#8221; and everything to do with producing thinking, active, knowledgable citizens). <em>That</em> requires teacher-student engagement, discussion, personal interactions, careful writing, including responses and editing, arguing, talking, listening. It&#8217;s what law professors mean when they say law school&#8217;s primary goal isn&#8217;t to teach the law, but rather to teach students to &#8220;think like lawyers.&#8221; (And this explains the oft-criticized <a href="http://en.wikipedia.org/wiki/Socratic_method">Socratic method</a> pioneered by Harvard in the late nineteenth century.) <em>Current MOOCs simply don&#8217;t come close to delivering this kind of education.<br /> </em></p> <p>Still, critical thinking without data at its best is mere sophistry, and information delivery &#8212; done efficiently via MOOC &#8212; <em>is</em> important to a full education. And MOOCs certainly do this at least as well as traditional methods; in fact, I think they often do it better, for less money, and for more people. But they don&#8217;t effectively replace what in-person teaching, in any field (but not for every kind of material), can do today.</p> <p>I like MOOCs. I like the promise of education for all. But I don&#8217;t pretend teh shiny Interwebz tech can fix all the problems of education. If any country wants to compete globally &#8212; or even just produce good citizens &#8212; they might just need, as a society, to support students and universities with more than trendy technologies.</p> "Embracing the Opposition: The Conservative Appropriation of Liberal Critiques" https://inpropriapersona.com/articles/embracing-the-opposition-the-conservative-appropriation-of-liberal-critiques/ Thu, 27 Jun 2013 21:44:03 +0000 731f44c45c14065dc2b0053af35b1aca <p>I have put up <a href="http://ssrn.com/author=866777">a paper on SSRN</a> that I&#8217;ve been working on, &#8220;<a title="Embracing the Opposition: The Conservative Appropriation of Liberal Critiques" href="http://ssrn.com/abstract=2286355">Embracing the Opposition: The Conservative Appropriation of Liberal Critiques</a>,&#8221; that explores the appropriation of the critiques and rhetoric of liberals and progressives by modern conservatives. In it, I argue that in the last twenty years American conservatives have (mis)appropriated rhetorical critiques of their political opponents, especially regarding the authority of science and of regulatory agencies, originally initiated by liberals in the 1970s-1990s.</p> <p><a href="http://ssrn.com/abstract=2286355"><img class="size-medium wp-image-5775 alignleft" alt="Embracing the Opposition" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_232/v1514416556/Embracing-the-Opposition_tjz3nd.png" width="232" height="300" /></a></p> <blockquote><p>Looked at historically, this appropriation is particularly interesting because it was originally progressive liberals who pushed for the regulatory agencies they would later come to resist by the late 1960s, and it is liberals again who have turned back again to both science and administrative agencies. Originally opposed by conservatives in the early part of the twentieth century, these agencies were in many respects tamed by the business establishment in the 1950s and 1960s, before conservatives turned against them again beginning with Reagan in the 1980s and continuing on to today&#8217;s Republican Party. The modern conservative attack has not been limited to federal government agencies, however. It now extends to many areas, especially those related to science and rationality, including, for example, medicine and vaccination, global climate change, and even gay marriage.</p></blockquote> "Jurgen Habermas on the public sphere, the state, and the private sphere" https://inpropriapersona.com/articles/jurgen-habermas-on-the-public-and-private-spheres/ Wed, 12 Dec 2012 00:21:18 +0000 654c95d24e5d3a3dfc0ac53ea514e651 <a href="https://www.amazon.com/Structural-Transformation-Public-Sphere-Contemporary/dp/0262581086?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0262581086" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/61ApbTKRJyL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/61ApbTKRJyL.jpg" alt="The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Studies in Contemporary German Social Thought)" /> </a> <p>Jürgen Habermas is a German sociologist and philosopher. He is perhaps most well known for the concept of the &#8220;public sphere.&#8221; But what is this sphere? And what can be contrasted against it?<sup id="fnref-5722-1"><a href="#fn-5722-1" class="jetpack-footnote">1</a></sup></p> <blockquote><p> By &#8220;the public sphere&#8221; we mean first of all a realm of our social life in which something approaching public opinion can be formed. &#8212; Peter Hohendahl and Patricia Russian, &#8220;<a href="http://www.jstor.org/stable/487736">Jürgen Habermas: The Public Sphere: An Encyclopedia Article (1964)</a>,&#8221; p. 49. </p></blockquote> <p>In a note on this passage, Peter Hohendahl explains that the &#8220;public sphere&#8221; is not the same as a crowd of people <em>per se,</em> but rather consists of institutions (though these do consist of individuals, of course). In today&#8217;s liberal democracies, this includes institutions like &#8220;newspapers and magazines, radio and television&#8221; (49).</p> <p>Hohendahl also notes that the state (i.e., government) does not overlap with the public sphere, but is in fact an <em>opponent</em> (of a sort). Habermas writes that state authority is an &#8220;executor of the political public sphere,&#8221; but &#8220;it is not a part of it&#8221; (49). Hohendahl and Russian clarify this:</p> <blockquote><p> Habermas designates that sphere as public which antiquity understood to be private, i.e. the sphere of non-governmental opinion making. The public sphere, then, consists of associations of private individuals, but expresses their group (&#8220;public&#8221;) will. This will can be directed towards controlling or influencing state activities, but the state remains separate. But this influence by a <em>rational</em> public sphere over state activities is critical to liberal democracies (50). </p></blockquote> <h3>What is the difference between society and the public sphere?</h3> <p>&#8220;Society&#8221; is related to the state in a way similar to that of the public sphere: it is &#8220;a private realm occupying a position in opposition to the state&#8221; (52). But unlike the public sphere, which refers to institutions, society for Habermas consists of people in their private and individual capacities. He notes, though, that in contemporary market-based economies, society extends &#8220;beyond the bounds of private domestic authority&#8221; (52).</p> <p>Habermas explains that modern constitutions in liberal democracies sought to protect society &#8220;as a sphere of private autonomy&#8221; and to limit state (&#8220;public&#8221;) authority (52-53). They also created a space between the two &#8212; the public sphere:</p> <blockquote><p> Between these two spheres, the constitutions further insured the existence of a realm of private individuals assembled into a public body who as citizens transmit the needs of bourgeois society to the state (52-53). </p></blockquote> <p>The First Amendment of the United States Constitution, which includes both clauses that protect both freedom of speech and of assembly, is an excellent example of constitutional protection for the public sphere.</p> <h4>What, then, is the difference between public and private?</h4> <p>For Habermas, the private sphere is a primarily about <em>autonomy</em>: &#8220;a sphere of bourgeois society which would stand apart from the state as a genuine area of private autonomy&#8221; (51). This is the area of family, exchange, and even work that revolves around individuals, not institutions. In many respects, &#8220;private sphere&#8221; and &#8220;society&#8221; appear to be synonyms to Habermas, as both consist of areas of autonomous activity, that is, activity separate from that of the state (though the state may intrude).</p> <p>The public sphere thus occupies the space between state (government) actors and private actors, and between &#8220;public authority&#8221; of the government and the private authority of autonomous individuals. But while this sounds fine, I rapidly find the boundaries blurring. At what point does a group of private individuals become a &#8220;public institution&#8221;? When they attempt to influence the state? When they attempt to influence other groups? When is a private business part of the public sphere, and when is it &#8220;purely&#8221; private? Habermas&#8217; definitions are useful, but do not seem to me to be either definitive or firm.</p> <div class="footnotes"> <hr /> <ol> <li id="fn-5722-1"> Note that the term &#8220;public&#8221; can be confusing, as it can have different meanings. Americans, especially, tend to equate &#8220;public&#8221; with &#8220;government&#8221; (as in &#8220;public schools&#8221;), while Europeans tend to (like Habermas) to equate &#8220;public&#8221; with <em>non</em>-governmental institutions and groups. Thus, an American public school is state run, but an English public school is the opposite, as it is run by private individuals.&#160;<a href="#fnref-5722-1">&#8617;</a> </li> </ol> </div> "Kara Swanson on blood banks, commodification, and “de-propertization”" https://inpropriapersona.com/articles/kara-swanson-on-blood-banks-commodification-and-de-propertization/ Sun, 18 Nov 2012 19:13:55 +0000 4cf89cc791e9eb49ee24046e0daf772e <p><a href="http://web.archive.org/web/20130407114653/http://www.northeastern.edu/law/academics/faculty/directory/swanson.html"><img class="alignright size-medium wp-image-5696" src="http://res.cloudinary.com/krisnelson/image/upload/h_243,w_300/v1514416559/blood-donation-1942_fdves2.jpg" alt="" width="300" height="243" />Kara Swanson</a>, law professor (and history of science PhD) at Northeastern University, presented a fascinating talk on blood banks at the History of Science Society 2012 meeting in San Diego. While we&#8217;ll have to wait for her book on the topic to come out, I nonetheless found enough to entertain me:</p> <p>Before the 1915 &#8212; and for a while afterwards, blood transfusions were done directly from arm-to-arm, person-to-person. Blood had to be provided &#8220;on the hoof&#8221; by donors in the same room at the same time as the patient, the procedure and linkage was complex and fragile, and complication rates were relatively high for both patient and donor. The development of anti-coagulants gave doctors an alternative, allowing blood to be taken and stored for short periods of time. It also led to storage repositories for blood, repositories which came to be known by the end of the 1930s as &#8220;blood banks.&#8221; The metaphor suggested a familiar concept of deposit-and-withdrawal to people, along with a strong sense of the key importance of oversight and care that bank failures in the Depression had instilled in people.</p> <p>These early systems usually paid those who provided blood, or operated on a credit-and-debit system where patients who received blood had friends and family donate on their behalf to correct the imbalance. Massive blood donation campaigns in WWII &#8212; now that blood, or at least plasma, could be sent overseas, encouraged unselfish donation of blood instead, an approach that would become the standard by the late 20th century.</p> <p>Post-war, however, most blood banks increasingly commodified their blood supplies, paying donors and in turn supplying blood as a fungible product to hospitals and doctors. At the same time, product liability law in the United States was increasingly moving towards <a href="http://en.wikipedia.org/wiki/Strict_liability">strict liability</a> &#8212; products that caused harm were automatically considered defective, and producers and suppliers could be held liable without proof of negligence.</p> <p>Although blood had become increasingly safe (blood types were well understood and blood products were labeled and tested for type), diseases like hepatitis were all-too-often transmitted during transfusions. Infected patients turned to product liability lawsuits to recover damages. By the 1960s, strict product liability had become established in the law (led by California&#8217;s <em>Greenman v. Yuba Power Products</em>, <a href="http://scholar.google.com/scholar_case?case=16383315944612185169" rel="nofollow">59 Cal. 2d 57</a> (1963)), and blood banks became increasingly nervous about their potential liability to patients.</p> <p>As a consequence, blood banks moved in two related directions. First, in cooperation with hospitals, they &#8220;rebranded&#8221; themselves as service providers. Blood (formerly the product) was now incidental; banks weren&#8217;t selling blood anymore, they were connecting patients and donors. Second, and relatedly, blood banks stopped paying donors for whole blood (which has more potential disease transmittal issues), and blood donation became a kind of &#8220;<a href="http://en.wikipedia.org/wiki/Gift_economy">gift economy</a>&#8220;: as in WWII, public-service campaigns encouraged people to donate in order to help others, and not as a means of income. Blood was increasingly &#8220;de-propertized&#8221; or &#8220;de-productized&#8221; in order (at least partly) to keep it out of the realm of strict product liability law.</p> <p>This approach had become firmly entrenched in the 1970s, and continues today.</p> <p>I was left wondering how much this shift was influenced by, or in turn had an influence on, the American legal conception that we have no <em>property</em> rights in our own bodies (<em>Moore v. Regents of the University of California, </em><a href="http://scholar.google.com/scholar_case?case=14543058709300681513">51 Cal. 3d 120</a> (1990)). That is, if cells taken from me become money-makers, I am not entitled to a share of the profits. Similarly, the United States bans the sale of organs &#8212; only voluntary donation is permitted. (Sperm, eggs, and blood are some exceptions to this general rule, although even then property rights are limited though sale is permitted.) I wonder how much influence product liability had on this outcome, especially since the prohibition is often presented in moral terms? Similarly, did moral qualms about sales of human products influence, encourage, or help the move towards blood donation as a gift economy?</p> <p>I look forward to seeing Dr. Swanson&#8217;s eventual book on blood banks (and other kinds of &#8220;body banks&#8221;) &#8212; it should be fascinating.</p> "Nullification and Obamacare: rejection of the rule of law" https://inpropriapersona.com/articles/nullification-and-obamacare-rejection-of-the-rule-of-law/ Tue, 13 Nov 2012 19:00:23 +0000 206c5ea9e47f41a6643a5060ddb5b94f <p><a href="http://www.flickr.com/photos/library_of_congress/5597811687/in/photostream/"><img class="alignright size-medium wp-image-5687" title="View of mortar and artillery" src="http://res.cloudinary.com/krisnelson/image/upload/h_153,w_300/v1514416563/View-of-mortar-and-artillery_ki76py.jpg" alt="" width="300" height="153" /></a>The idea of nullification &#8212; essentially, states telling the federal government that state law outranks federal law &#8212; is both seductive and persistent. It&#8217;s based on a 200-year-old understanding of the Constitution: that the states created, and maintain, the federal government, and that states therefore determine what is constitutional and what is not. As philosophically desirable as this may be, 200 years of settled law says this is a dead constitutional theory.</p> <p>Nonetheless, proponents insist that individual states have the power to nullify federal laws. Much of this new-found fascination with nullification revolves around opposition to the Affordable Care Act (&#8220;Obamacare&#8221;).</p> <h3>Nullification and the Constitution</h3> <p>The constitutional basis for rejected nullification comes from two key clauses and sections. First, the Supremacy Clause (Article VI, Clause 2) established federal law as supreme over state law:</p> <blockquote><p>This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.</p></blockquote> <p>Second, Article III, Section 2 says, in part:</p> <blockquote><p>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority&#8230;</p></blockquote> <p>In responding to nullification attempts by various states, the Supreme Court has consistently rejected the theory. Thus, the Supreme Court in 1809 argued that allowing nullification would be essentially make the Constitution itself worthless:</p> <blockquote><p>If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. &#8212; <a href="http://scholar.google.com/scholar_case?case=11643047656481314023"><em>United States v. Peters</em></a>, 9 US 115 (1809)</p></blockquote> <p>Although it never went to the Supreme Court, the <a href="http://en.wikipedia.org/wiki/Nullification_Crisis">Nullification Crisis</a> of the 1830s forced President Andrew Jackson &#8212; formerly supportive of such state actions &#8212; to respond to South Carolina&#8217;s rejection of federal tariffs:</p> <blockquote><p>I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed. &#8212; President Jackson&#8217;s <a href="http://avalon.law.yale.edu/19th_century/jack01.asp" rel="nofollow">Proclamation Regarding Nullification</a>, December 10, 1832.</p></blockquote> <p>Virginia twice attempted to reject federal supremacy, and twice lost, first in <em>Martin v. Hunter&#8217;s Lessee</em>, 14 U.S. 304 (1816) and second in <em>Cohens v. Virginia</em>, 19 U.S. 264 (1821). In 1924, Ohio tried to tax a federal bank (in violation of federal law and a Supreme Court decision), and lost in <em>Osborn v. Bank of the United States</em>, 22 U.S. 738 (1824).</p> <p>Georgia infamously nullified a federal treaty with the Cherokee in the 1820s, and lost in <em>Worcester v. Georgia</em>, 31 U.S. 515 (1832). Before any enforcement action could be taken, President Andrew Jackson (who supported Georgia) negotiated an end to the crisis, leading to forced Cherokee relocation and the Trail of Tears.</p> <p>Some Northern states attempted nullification in response to federal Fugitive Slave Laws. The Supreme Court rejected Pennsylvania&#8217;s attempt in <em>Prigg v. Pennsylvania</em>, 41 U.S. 539 (1842). Wisconsin tried again to protect fugitive slaves within its borders, and was rebuffed in <em>Ableman v. Booth</em>, 62 U.S. 506 (1859).</p> <p>The secession of Southern states &#8212; the ultimate assertion of state over federal power &#8212; put an end to the nullification discussion until the 1950s.</p> <p>In the wake of <em>Brown v. Board of Education</em>, 347 U.S. 483 (1954), many Southern states attempted to reject or nullify federal intervention in their states and to preserve segregation. In response to Alabama&#8217;s nullification attempts, the Supreme Court wrote in <em>Cooper v. Aaron</em>, 358 U.S. 1 (1958):</p> <blockquote><p>In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted &#8220;ingeniously or ingenuously.&#8221;</p></blockquote> <p>The law in this are is settled. No petition or initiative, act of Congress, executive order, act of a state legislator, or governor&#8217;s action can change this, however strong, logical, or powerful the argument for it may be.</p> <h3>Revolution and the Rule of Law</h3> <p>There are nonetheless several paths to making nullification legal. Amending the federal constitution is one challenging path: it requires super-majorities at all stages, and cannot be done by any state alone. Another potential method would be to convince the current Supreme Court that previous precedent was wrong. If that failed, one could try to slowly replace the current Supreme Court with new justicies that believe in nullification, and are willing to reject 200 years of precedent. These are the only approaches allowable under the Constitution. (Remember, the Declaration of Independence is a <em>revolutionary</em> document, <em>not </em>a legal one, and it carries nothing but persuasive weight in American law. Similarly, the Federalist Papers are persuasive arguments, and carry no other legal weight.)</p> <p>You cannot accept the current Constitution without also accepting the consequences of what it establishes: that the Supreme Court is the final arbiter of what the Constitution means. And the Supreme Court &#8212; acting under the Constitution and its amendments &#8212; <em>has rejected nullification as unconstitutional.</em> (Yes, their decisions can be <em>wrong </em>and even <em>unjust</em>, but they are always, by definition, <em>constitutional.</em>) No quote by Thomas Jefferson, James Madison, or anyone else can change this, even if it can give you philosophical<em> </em>grounds to advocate for revolutionary change. This is why Thomas Jefferson had to reach for &#8220;<a href="http://en.wikipedia.org/wiki/Natural_law#American_jurisprudence">natural law</a>&#8221; when he advocated for rejecting England&#8217;s rule over the American colonies. Again, such moves can be justified as revolutionary, but they fall outside the Constitution. </p> <p>Any other path to permitting nullification by states requires rejecting our establishing document (<em>including</em> the <a href="http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution">Tenth Amendment</a>) through revolution. Taking this path would require rejecting a core value of the American legal tradition: respect for the <a href="http://en.wikipedia.org/wiki/Rule_of_law">rule of law</a>. It&#8217;s an approach that led directly to the <a href="http://en.wikipedia.org/wiki/United_States_Civil_War">American Civil War</a>, where the South rejected the Constitution and established an entirely new governmental system. Is this the path nullification proponents seek? To reject the Constitution they purport to hold sacred? To overthrow our democratic government and replace it with another? If so, they should acknowledge that; if not, they should recognize the limited <em>constitutional</em> paths to change.</p> "Done recovering posts after server failure" https://inpropriapersona.com/news/2012/done-recovering-posts-after-server-failure/ Sat, 10 Nov 2012 23:09:19 +0000 263e71378fd0a0fedfccd6b57a228fe9 <p><a href="http://www.flickr.com/photos/smithsonian/2535985355/in/photostream/"><img class="alignright size-medium wp-image-5679" title="airmail airplane" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_273/v1514416566/airmail_fxxbjs.jpg" alt="" width="273" height="300" /></a>After a little more than a week of work, I&#8217;ve successfully recovered from the <a href="https://inpropriapersona.com/recovering-from-server-failure-and-bad-backups-the-internet-remembers/">server failure at my old hosting provider</a>. I&#8217;ve also implemented a new, multiply redundant backup strategy: <a href="http://wordpress.org/extend/plugins/backupwordpress/">BackUpWordPress</a> (local and then to <a href="https://www.dropbox.com/">Dropbox</a>) and <a href="http://wordpress.org/extend/plugins/pressbackup/">PressBackup</a> (to <a href="http://aws.amazon.com/s3/">Amazon S3</a>). The database is backed up daily, all files are constantly synced to Dropbox, and everything is sent to S3 monthly.</p> <p>I&#8217;ve also switched themes, at least for now. The look may still change as I take this opportunity to adapt and improve the site.</p> "Recovering from server failure and bad backups: the Internet remembers" https://inpropriapersona.com/news/2012/recovering-from-server-failure-and-bad-backups-the-internet-remembers/ Sun, 04 Nov 2012 00:02:14 +0000 369ff346236df022771f572dca115fc2 <p><a href="http://www.flickr.com/photos/smithsonian/2550351665/"><img class="alignright size-medium wp-image-5527" title="Airmail Crash" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_231/v1514416635/airmail-crash-2550351665_49422bb31c_b_ujok7r.jpg" alt="" width="230" height="300" /></a>Two days ago I received several emails notifying me that my sites were all down. Soon thereafter my VPS hosting provider emailed me to say my server, and numerous others, had all been lost, and they had no backups.</p> <p>Unfortunately, my SQL backup system had been failing silently, and the latest ones were from February. Fortunately, all my filesystem data (pictures, templates, static files) were backed up constantly via Dropbox, so none of that was lost. But how to recover all my posts since February?</p> <p>Google caches pages, so all my pages were archived there at least &#8212; but it&#8217;s quite clunky to pull down more than a few pages from their caches. <a href="http://code.google.com/p/warrick/">Warrick</a> promises to automate the process, but I couldn&#8217;t get it to recover my articles (though it worked fine for other pages). So instead I went to Google Reader &#8212; where my RSS feed has been archived going back years. I went through each missing article and sent it into Evernote to archive it. Then I tediously went through Evernote and cut &amp; pasted my article back into WordPress with the correct date (and re-added images, which had been saved via Dropbox). Frustrating, but it&#8217;s working fine! (And I&#8217;ve switched hosting providers.)</p> <p>The lesson? Validate your backups! And never give up if it seems like you&#8217;ve lost things online. The Internet remembers.</p> "Facebook’s core problem: customers vs. users" https://inpropriapersona.com/articles/facebooks-core-problem-customers-vs-users/ Mon, 08 Oct 2012 00:42:51 +0000 7b994dc4cc9fe484fb5521e91e35986a <p><img class="alignright size-medium wp-image-5552" title="Facebook" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_183/v1514416627/Facebook-Flare_wzmkiv.jpg" alt="" width="182" height="300" />Facebook’s <a href="http://www.npr.org/blogs/thetwo-way/2012/10/04/162283078/facebook-hits-major-milestone-1-billion-active-users">massive growth</a> came because they gave users what they wanted: connect with your friends, see what their doing, conveniently share with them, and so on — and do it for free. But now they’re publicly traded, and satisfying users has become secondary to profit growth:</p> <ul> <li>The news feed shows what <em>Facebook</em> (via “<a href="http://techcrunch.com/2010/04/22/facebook-edgerank/">EdgeRank</a>“) mysteriously chooses for you, and insistently switches you to it (even “Most Recent” doesn’t show quite <em>everything</em> anymore)</li> <li>Relatedly, it’s <a href="http://techcrunch.com/2012/10/03/us-promoted-posts/">expanding “promoted posts”</a>: pay $7, and Facebook will make your posts more visible to your friends</li> <li>It’s <a href="http://www.readwriteweb.com/archives/facebooks-email-scanning-isnt-a-privacy-issue-its-a-credibility-issue.php">scanning your private messages</a> for links in order to boost the “likes” of things you mention</li> <li>Facebook is removing “fake” accounts (no family pets on Facebook!) and “<a href="http://www.readwriteweb.com/archives/behind-facebooks-campaign-to-delete-false-likes.php">phony likes</a>“</li> </ul> <p>All of this makes sense from the Facebook (and Wall Street?) side. Some of it even makes sense from an advertiser-on-Facebook’s perspective. But none if it is aligned with the interests of users. And failing to align business interests with user’s interests makes for a more complex, challenging, and <em>vulnerable</em> business model.</p> <p><strong>Other businesses</strong></p> <p>Car makers, for example, make more money when the people who buy their cars are happy. <em>Their users are their customers,</em> and happy users buy more cars. So to make more money, you make better cars. (Though customer desire, for example, can still be manipulated.)</p> <p>Television producers make shows for advertisers. Their customers <em>are not</em> their viewers. While they attempted to make up for this with various tools (like Nielsen ratings), their fundamental business model — while profitable for decades — has proven deeply vulnerable to changes in habits by their <em>users</em> (VCRs, then DVRs, downloading, and streaming). But because television is aligned towards their <em>customers</em> (advertisers) — and they have not fundamentally changed — television has struggled to adapt. They simply are not attuned to their users, since their profit comes from another source.</p> <p>Facebook is facing the same fundamental problem that television is: their customers and their users are not aligned in interests. Whatever Facebook does to make a profit, then, always requires a vulnerable balance that requires convincing users that Facebook’s changes <em>are</em> valuable to them, even when they’re not. Or convincing users that Facebook cares about their needs, even when Facebook only cares about their <em>actual</em> customers.</p> <p><strong>Facebook problems</strong></p> <p>Thus, for example, Facebook cares about privacy enough to keep users quiet about the issue. Keeping users is important to Facebook (because their real customers care), but that’s an indirect concern. Facebook directly makes more money when users have less privacy, not more. <em>But if customers were their users, that wouldn’t be true.</em></p> <p>As another example, some users are giving up on Facebook because it simply doesn’t deliver what they want anymore. The mysterious and opaque EdgeRank — tuned to <em>Facebook’s needs</em> — means their friends don’t reliably see their posts anymore, and demanding $7 to remedy this is just rubbing salt in the wound. <em>Again, if customers were their users, this wouldn’t be true.</em></p> <p>Similarly, sites that force users to login with Facebook to read articles send a message: <em>you, the user, are the product, not the customer.</em> And that’s a recipe for a short-term relationship (“it’s complicated”), not a lasting one.</p> <p><strong>Solutions?</strong></p> <p>What can Facebook do about this? Unfortunately, not much. They could, of course, turn users into customers by charging a straight subscription fee — but this might drive away the user-base that provides so much value. Otherwise, though, they’re going to have to <em>innovate</em> with their business model in order to figure out how to align the interests of customers and users, or <a href="http://awardwinningfjords.com/2012/10/04/facebook-the-devourer.html">risk becoming irrelevant</a>.</p> "Do we need God to understand the Constitution?" https://inpropriapersona.com/articles/do-we-need-god-to-understand-the-constitution/ Mon, 24 Sep 2012 00:40:04 +0000 33741f82f89814e58f2cc74931861b24 <p><img class="alignright size-medium wp-image-5549" title="US News - Improve Understanding of the Constitution" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_185/v1514416630/usnews-improve-understanding-flare_gruls4.jpg" alt="" width="184" height="300" />September is the 225th anniversary of the United States Constitution. While it’s the foundation of our political system, <a href="https://inpropriapersona.com/critiquing-constitutional-readings-introduction-and-underdetermination/">many Americans really don’t understand it accurately</a>. While many of those who try to help do contribute useful understandings, sometimes their approaches neglect the historical and textual complexity of the document — and are potentially misleading.</p> <p>For example, while acknowledging and lamenting this lack of general understanding of this foundational document, Peter Roff, in <a href="http://www.usnews.com/opinion/blogs/peter-roff/2012/09/21/americans-must-improve-their-understanding-of-the-constitution">Americans Must Improve Their Understanding of the Constitution</a>, chooses to emphasize “God” as if it were an unproblematic influence on the Constitution. He writes:</p> <blockquote><p>Prior to the Constitution, and the revolution that inspired it, the widely held belief was that power came from God and was given to kings, who in turn would use that power to rule over the people in His name.</p></blockquote> <p>The Constitution changed all that. It was a new covenant, established on the principle that power flowed from God to the people who then loaned it to the state in order to better administrate the affairs of man and to produce what has become known as “ordered liberty.”</p> <p>While there is certainly something true in what Roff says, his “neat and tidy” summary of constitutional context collapses complexity into facile description. He does acknowledge that it was “imperfect,” at least: “The Founding Fathers themselves recognized this, including within it several mechanisms to amend it as needed.”</p> <p>But the “Founding Fathers” were hardly unified in their views (vitriolic arguments between Federalists vs. <a href="http://en.wikipedia.org/wiki/Anti-Federalism">Anti-Federalists</a> are just one example). Not all of them believed in the same ”covenant” (or, as its more usually stated, “contract”) theory of government, nor did they all believe that power flowed from God to people to the state.</p> <p>The Constitution itself contains no mention of covenants nor of God — though the “People” are most definitely present, right from the preamble onwards:</p> <blockquote><p>We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.</p></blockquote> <p>Gods and covenants are notably absent in the Constitution. Perhaps Roff is thinking of the Declaration of Independence?</p> <blockquote><p>We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.</p></blockquote> <p>(Note that it also references “the Laws of Nature and of Nature’s God,” both of which <em>may </em>include the Christian God, but which also reference <a href="http://en.wikipedia.org/wiki/Thomas_Jefferson">Thomas Jefferson’s</a> <a href="http://en.wikipedia.org/wiki/Deism">Deism</a>).</p> <p>Roff’s description of the context of the Constitution tells only <em>part</em> of the back-story, one that’s been used by many to make the Constitution into a Christian document, not a secular one. Roff’s description perpetuates this incomplete and misleading trend.</p> <p>Similarly, Roff’s focus on the Constitution as “covenant” — a term which also has religious implications — does reference a common view of the day that governments were “<a href="http://plato.stanford.edu/entries/contractarianism/">social contracts</a>“: government gains authority because people consent to that authority. The details of this were (and are debated): as one example, do we simply imply our consent by living here? What is the role of force in consent? But perhaps most importantly, here again Roff inserts God in the equation in a way that many, perhaps especially Thomas Jefferson, were at pains to remove. As the Preamble shows, God is not necessary to “form a more perfect Union.”</p> <p>None of this is to say that the Founders were atheists, or that belief in God did not play a role in the writing of the Constitution. It is only to suggest that Roff’s expression of the founding of the nation obscures real complexity. His formulation implies that God is necessary to the Constitution, and that other, secular understandings are wrong. That said, no historian could hope to understand the writing of the Constitution without a background in the religious views (plural) of the time. But implying that that a faith-based perspective on the Constitution is the only correct one is equally misleading, especially to understand the Constitution in today’s context.</p> <p>Believer or not, Christian, Muslim, Buddhist or other, everyone can understand that the legal rights in the Constitution are not absolute, and that the document outlines balances between various levels and branches of government that are complex and evolving. Religion is <em>not</em> necessary to understand the text, but <em>is</em> required for a proper history. (And these aren’t the same thing.)</p> "Warrantless wiretaps and the Fourth Amendment: why would a court allow a violation of the Constitution?" https://inpropriapersona.com/articles/warrantless-wiretaps-and-the-fourth-amendment-why-would-a-court-allow-a-violation-of-the-constitution/ Wed, 08 Aug 2012 21:31:24 +0000 071ee307e1ae5470360197db4a609813 <p><a href="https://inpropriapersona.com/warrantless-wiretaps-and-the-fourth-amendment-why-would-a-court-allow-a-violation-of-the-constitution/mckeown-opinion-flare/" rel="attachment wp-att-5671"><img class="alignright size-medium wp-image-5671" title="mckeown opinion" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_257/v1514416568/mckeown-opinion-flare_jdtum6.jpg" alt="" width="256" height="300" /></a>In <a href="http://www.wired.com/threatlevel/2012/08/appeals-court-oks-wiretapping/">Appeals Court OKs Warrantless Wiretapping</a>, David Kravets summarizes a recent 9th Circuit decision regarding wiretaps by the federal government:</p> <blockquote><p>The federal government may spy on Americans’ communications without warrants and without fear of being sued, a federal appeals court ruled Tuesday.</p></blockquote> <p>But how is this possible, if the Supreme Court has already ruled (in <a href="https://en.wikipedia.org/wiki/Katz_v._United_States">Katz v United States</a>) that wiretaps without warrants violate the Fourth Amendment?</p> <p>First, let’s go back and review what the <a href="https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> says:</p> <blockquote><p>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</p></blockquote> <p>Per usual in looking at the <a href="https://en.wikipedia.org/wiki/United_States_Constitution">United States Constitution</a>, the general idea here is clear, but the particulars are not. What does “secure” mean? How do “Warrants” related to security? What’s the role of the judiciary in this process? And perhaps most critically: what do we do about a violation?</p> <p>The courts, faced with this kind of ambiguity, have decided that the most powerful enforcement mechanism is to <a href="https://en.wikipedia.org/wiki/Exclusionary_rule">exclude evidence</a> gathered in violation of the Fourth Amendment from all criminal prosecutions — regardless of guilt or innocence of the parties. Beyond this, the courts rely on the legislature (Congress, in the federal system) to provide additional mechanisms of enforcement.</p> <p>Of course, civil lawsuits alleging harm are a traditional, “bottom-up” way for citizens to leverage the court system to address grievances. So even without clear mechanisms granted by Congress, why can’t our common-law system build on traditional torts like trespass to enforce the Fourth Amendment?</p> <p>The answer to that involves a very old doctrine known as <a href="https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States">sovereign immunity</a>. The old idea the United States inherited was the the King (sovereign) created the Courts, and therefore they could not be used against him. <a href="http://www.law.cornell.edu/wex/Sovereign_immunity">Article III, Section 2</a> is one possible Constitutional source for federal soverieign immunity, while the Eleventh Amendment has been held to protect states. But as with many things, sovereign immunity is more deeply rooted in judicial tradition — i.e., common law — than it is in the specific words of the Constitution. 200 years+ of sovereign immunity as a core principle of the American legal system means that it will take more than a trial court to change.</p> <p>While Congress could waive sovereign immunity entirely, it never has. Instead, Congress has waived sovereign immunity and allowed suits against the government only in <em>specific</em> types of cases — and thus the key question in <a href="http://www.ca9.uscourts.gov/datastore/opinions/2012/08/07/11-15468.pdf">AL-HARAMAIN ISLAMIC v. OBAMA</a> is whether Congress has or has not waived immunity in the case of wiretaps. The Ninth Circuit says the answer is that Congress has not waived:</p> <blockquote><p>The threshold issue in this appeal is whether the district court erred in predicating the United States’ liability for money damages on an implied waiver of sovereign immunity under § 1810. It is well understood that any waiver of sovereign immunity must be unequivocally expressed. Section 1810 does not include an explicit waiver of immunity, nor is it appropriate to imply such a waiver.</p></blockquote> <p>In essence, the court cannot even consider the merits of the case, because the federal government is immune from suit. In short, citizens can only enforce the <em>Katz</em> and the Fourth Amendment restriction on warrantless wiretaps through political action (i.e., Congressional legislation), <em>not </em>through the courts.</p> <p>All that said, the courts — per the <a href="https://en.wikipedia.org/wiki/Exclusionary_rule">Exclusionary Rule</a> — will not allow evidence gathered in this way to be used in court, and might also order someone held on the basis of this evidence released in a <a href="https://en.wikipedia.org/wiki/Habeas_corpus_in_the_United_States">habeus corpus petition</a>. But without the authorization of Congress, citizens cannot sue for this violation of the <a href="https://en.wikipedia.org/wiki/United_States_Bill_of_Rights">Bill of Rights</a>.</p> "History and its purpose: the case of the government and the Internet" https://inpropriapersona.com/articles/history-and-its-purpose-the-case-of-the-government-and-the-internet/ Fri, 27 Jul 2012 02:35:53 +0000 40ddcd64ac66b73dfab25a1ef57ec829 <figure style="max-width: 225px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/therefore/2725001687"><img title="First Internet Message Arpanet UCLA" src="http://farm4.staticflickr.com/3167/2725001687_99f74a7592_m.jpg" alt="" width="225" height="240" /></a><figcaption class="wp-caption-text">&#8220;First Internet Message Arpanet UCLA&#8221; by Flickr user Dean Terry, used under a CC BY-NC-ND 2.0 license.</figcaption></figure> <p>I have <a href="https://inpropriapersona.com/critiquing-constitutional-readings-introduction-and-underdetermination/">written before on <em>underdetermination</em></a><em>:</em> that in many cases, the same data can produce many “right” answers (but at the same time, not <em>any</em> answer is equally valid). Thus, for example, without bringing in additional support, the U.S. Constitution does not by itself definitely answer the question of whether or not GPS tracking is a “search” within the meaning of the Fourth Amendment.</p> <p>To help answer this kind of question — and many other public policy questions — many of us turn to history (or sociology, or political science, or similar disciplines) to provide further evidence to help choose between equally rational arguments. <strong>The purpose of history is to provide a mildly depressing, reality-based narrative that helps guide future decisions.</strong></p> <p>History is of course too vast and detailed a source of evidence to utilize in full (how do we incorporate the experiences of everyone who has ever lived into our analysis?). Still, the data it provides can help us bolster one aspect or another of an otherwise underdetermined argument.</p> <p>It should be no surprise then, that history should be invoked again to help answer the question of the role of government in society. More specifically, does — or <em>can</em> — government actually help innovation and development, or is it all due to the heroic efforts of individuals working within private enterprises? Asking if government <em>can</em> develop technologies is essentially a historical question, since development happens over time — and that’s history. So it should be no surprise that conservatives seeking evidence to support their proposition that government is the enemy of innovation should turn to history for data.</p> <p>But what happens when this history is <em>wrong?</em></p> <p>On the <em>WSJ</em> opinion page, Gordon Crovitz, in “<a href="http://online.wsj.com/article/SB10000872396390444464304577539063008406518.html">Who Really Invented the Internet?</a>,” maintains:</p> <blockquote><p>Contrary to legend, it wasn’t the federal government, and the Internet had nothing to do with maintaining communications during a war.</p></blockquote> <p>Crovitz answers his title’s question by giving credit to private enterprise instead of government:</p> <blockquote><p>If the government didn’t invent the Internet, who did? Vinton Cerf developed the TCP/IP protocol, the Internet’s backbone, and Tim Berners-Lee gets credit for hyperlinks. … But full credit goes to the company where Mr. Taylor [who had worked previously for the Department of Defense] worked after leaving ARPA: Xerox.</p></blockquote> <p>Crovitz thus provides evidence from history to undermine an argument that government can be responsible for innovation — a perfectly valid use of history to escape the limitations of arguments about the static state of affairs we see around us at any one moment. Unfortunately, <em>his history is simply wrong.</em> While there is, as I noted above, so much history available that any reporting of it is inevitably selectionist and limited, that (like with underdetermination of the Constitution) does not mean that <em>any </em>selection of historical facts is equivalent to any other. Sometimes you are<em> just wrong.</em></p> <p>In the case of Crovitz’s article, the power of the press came quickly to bear on the issue. A variety of writers — including Michael Hiltzik, cited by Crovitz in support of his argument — disagree with much of the evidence Crovitz uses to support his argument. <a href="http://www.latimes.com/business/money/la-mo-who-invented-internet-20120723,0,5052169.story">Hiltzik writes</a> in the <em>Los Angeles Times</em>:</p> <blockquote><p>And while I’m gratified in a sense that he cites my book about Xerox PARC, <a href="http://www.amazon.com/Dealers-Lightning-Xerox-PARC-Computer/dp/0887309895">“Dealers of Lightning,”</a> to support his case, it’s my duty to point out that he’s wrong. My book bolsters, not contradicts, the argument that the Internet had its roots in the ARPANet, a government project.</p></blockquote> <p><em>Ars Technica</em> writer Timothy B. Lee rebukes Crovitz in an article called, “<a href="http://arstechnica.com/tech-policy/2012/07/wsj-mangles-history-to-argue-government-didnt-launch-the-internet/"><em>WSJ</em> mangles history to argue government didn’t launch the Internet</a>.” In “<a href="http://www.pcmag.com/article2/0,2817,2407539,00.asp">Yes, Virginia, the Government Invented the Internet</a>,” <em>PC Magazine</em> writer Damon Poeter adds, reiterating Hiltzik’s point, that</p> <blockquote><p>Crovitz wants to somehow credit private industry for the invention of the TCP/IP communications protocol without acknowledging that Vinton Cerf and Robert Kahn developed it on a government contract.</p></blockquote> <p>Then drawing on this <em>revised</em> evidence, Michael Moyer, the editor in charge of technology coverage at Scientific American, <a href="http://blogs.scientificamerican.com/observations/2012/07/23/yes-government-researchers-really-did-invent-the-internet/">concludes</a>:</p> <blockquote><p>In truth, no private company would have been capable of developing a project like the Internet, which required years of R&amp;D efforts spread out over scores of far-flung agencies, and which began to take off only after decades of investment. Visionary infrastructure projects such as this are part of what has allowed our economy to grow so much in the past century. Today’s op-ed is just one sad indicator of how we seem to be losing our appetite for this kind of ambition.</p></blockquote> <p>Now, Moyer’s conclusion is not the only one possible, even from the revised evidence of early Internet history. Based on the shared historical evidence we know all have, it might be equally rational to argue that the Internet was an exceptional case, that <em>in general</em> innovation doesn’t work this way, or even that everything would have gone better or faster if government had just stayed away. <em>This</em> is where the debate should be — but it’s an impossible debate to have when the evidence is <em>wrong</em>.</p> <p>Fortunately, the Internet was developed recently enough that many people were <em>there</em>, and can correct bad history. Also fortunately, the medium of press dissemination <em>is the Internet</em>, and thus there are many interested and widely read researchers who can correct the record. But so many other (mis-)uses of history lack this kind of capable and effective cadre of fact checkers, and it is left to the general public to sort through and evaluate facts and evidence themselves (and of course, even the most capable researcher or historian often reads outside of their field of knowledge). What do we do about this?</p> <ol> <li>First, of course, writers need to take on the individual responsibility to check their facts and confirm their evidence — and to try, within their available abilities, to avoid evidence drawn from conclusions rather than conclusions drawn from evidence.</li> <li>Second, readers should act responsibility: think critically, evaluate sources, and confirm (as much as possible) the evidence.</li> <li>Third, historians need to accept that we have a role to play in society, whether we like it or not — and to recognize the importance of our work outside of the academy.</li> <li>Fourth, society as a whole should recognize the importance of history and the key role historians play in providing the evidence to make informed and responsible public-policy decisions.</li> </ol> <p>It’s naïve to expect historians to be unbiased. Doing history requires selectivity, and good historians draw reasonable conclusions from their work. But ethical historians (and thinkers generally) don’t mold their evidence to fit their world-views, even if their world views do (always) influence their work. There’s nothing wrong with using historical evidence to make a point — that’s an important part of public-policy analysis — but manipulating evidence undermines the validity of analysis and undermines public trust.</p> <p>There are more purposes to history that facilitating public-policy decisions. But this is one key purpose of history, and its one we should all keep in mind when doing history (whether we are professionals or not). Stated too simply: good history illuminates; bad history deceives. It’s naïve to think, of course, that <em>good</em> history will really solve anything — but <em>bad history</em> certainly won’t help!</p> "Abortion and constitutional underdetermination" https://inpropriapersona.com/articles/abortion-and-constitutional-underdetermination/ Thu, 19 Jul 2012 22:39:09 +0000 b0c3fbcb788bb0128c80ae53237217e3 <p><a href="https://inpropriapersona.com/abortion-and-constitutional-underdetermination/declaration-of-independence-e1342668359736/" rel="attachment wp-att-5509"><img class="alignright size-thumbnail wp-image-5509" title="Declaration of Independence" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_738,w_738,x_119,y_0/h_150,w_150/v1514417226/declaration-of-independence-e1342668359736_j9pdcw.jpg" alt="" width="150" height="150" /></a>Abortion is a complex and controversial topic. As such, I won’t try to deal with it fully here (nor will I be arguing for or against the legality abortion). I will, however, point out a few issues regarding the subject in Michael J. Nellet&#8217;s &#8220;<a href="http://www.westernjournalism.com/how-the-left-redefined-the-term-rights/">How The Left Redefined The Term &#8216;Rights.</a>&#8216;&#8221; Nellett writes:</p> <blockquote><p>The &#8220;right&#8221; of abortion, granted in 1973, is NOT a right under the Constitution &#8230; The &#8220;right&#8221; to an abortion is nowhere in the Constitution.</p></blockquote> <p>No specific, individual situations are explicitly delineated in the <a href="https://en.wikipedia.org/wiki/United_States_Bill_of_Rights">Bill of Rights</a>. It is thus no surprise that abortion is not specifically mentioned. (Neither are wiretaps or handguns.) But liberty and autonomy of self (what the courts have connected to &#8220;privacy&#8221;) has been held to permeate the Constitution, and for this reason the courts have connected personal integrity and personal autonomy to the decision to have an abortion. This reading is supportable, but so are readings that deny this position  &#8212; especially when beginning assumptions differ. In <a href="https://en.wikipedia.org/wiki/Roe_v._Wade"><em>Roe v. Wade</em></a>, the Supreme Court found protection of the right to an abortion to be more supportable than alternative interpretations. Again, specific situations do not need to be listed explicitly in the Constitution (the <a href="https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution">Second Amendment</a> does not mention handguns). And remember, too, that the <a href="https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution">Ninth Amendment</a> allows for rights that are not specifically listed:</p> <blockquote><p>The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.</p></blockquote> <p>Nellett&#8217;s argument on abortion illustrates one example of constitutional underdetermination. To get to his conclusion, he adds the assumption that &#8220;an unborn child is a person whether you want to believe it or not.&#8221; This assumption is nowhere in the Constitution itself. That a fetus is <em>not</em> a person is also not in the Constitution. The text of the Constitution thus <em>underdetermines</em> the abortion question. Answering it (in either direction) requires the courts bring in <em>something more </em>than the text itself. Nellett’s abortion argument also illustrates another common problem of lay interpretation: confusing one foundational document with another. In his case, he confuses the Declaration of Independence (which has only persuasive authority) with the Constitution (which is binding law):</p> <blockquote><p>In fact, the practice of abortion is in direct confrontation with the supreme laws and rights provided for in the Constitution. According to this document, the three unalienable rights you have in this country are, LIFE, LIBERTY, and the PURSUIT of HAPPINESS!</p></blockquote> <p>But the phrase &#8220;life, liberty, and the pursuit of happiness&#8221; are <em>not in the Constitution,</em> although it is nonetheless a profoundly powerful and influential set of words. The phrase is persuasive, but not binding on the courts. And  &#8212;  to reinforce my previous point on underdetermination  &#8212;  the phrase <em>also</em> underdetermines an answer to the question of abortion.</p> "Limits of interpretation: critiquing a lay reading of the 14th Amendment" https://inpropriapersona.com/articles/limits-of-interpretation-critiquing-a-lay-reading-of-the-14th-amendment/ Sat, 14 Jul 2012 03:54:59 +0000 0c28d977f6cb9d221ebf48d42e0293e6 <p><a href="https://inpropriapersona.com/limits-of-interpretation-critiquing-a-lay-reading-of-the-14th-amendment/lincoln/" rel="attachment wp-att-5593"><img class="alignright wp-image-5593 size-medium" title="Abraham Lincoln" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_286/v1514416610/lincoln_yrokcm.jpg" alt="" width="286" height="300" /></a>The <a href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution">Fourteenth Amendment</a> to the Constitution of the United States remains arguably one of the most controversial, complex, and challenging pieces of Constitutional text. It is also the subject of my third article in a series on <a href="https://inpropriapersona.com/series/critiquing-constitutional-readings/">typical problems in lay readings of the Constitution</a>.</p> <p>The Amendment has five sections, but it is the first that inspires most interpreters (see also<br /> <a href="https://inpropriapersona.com/if-the-fourteenth-amendment-didnt-exist-could-obama-still-be-president-yes/">If the Fourteenth Amendment didn’t exist, could Obama still be President?</a>:</p> <blockquote><p>Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.</p></blockquote> <p>The various sentences and phrases of Section 1 are generally referred to as (1) the Citizenship Clause; (2) the Privileges and Immunities Clause (it has been almost entirely ignored by the Court, which has instead preferred to favor the power of individual states to do as they wish); (2) the Due Process Clause; and (3) the Equal Protection Clause.</p> <p>Michael J. Nellet’s “<a href="http://www.westernjournalism.com/how-the-left-redefined-the-term-rights/">How The Left Redefined The Term ‘Rights’</a>” highlights one rightward-leaning interpretation of the Amendment:</p> <blockquote><p>The argument of “equal protection under the law” being thrown around by social activists today and especially the Democrats … has also distorted what the 14th Amendment says. It is clearly spelled out … and pertains to either American-born citizens or “Naturalized” citizens, period!</p></blockquote> <p>Reading Section 1 should make it clear that Nellett’s argument that the 14th Amendment “pertains to either American-born citizens or ‘Naturalized’ citizens, period” actually applies <em>only</em> to the Citizenship Clause (and likely to the Privileges and Immunities Clause), <em>not</em> to the 14th Amendment as a whole.</p> <p>The Due Process Clause specifically says “any person,” while the Equal Protection Clause specifically says “any person within its jurisdiction.” (Both apply only to individual states, but the Fifth Amendment is considered to provide equivalent protection against the federal government, and it refers to “any person.”)</p> <p>The 14th Amendment <a href="https://inpropriapersona.com/critiquing-constitutional-readings-introduction-and-underdetermination/#underdetermination">underdetermines</a> possible readings — in other words, more than one interpretation is reasonably possible — but Nellett’s mistake illustrates my point that this does not mean that <em>any</em> reading is possible. Nellett is <em>wrong</em> when he writes,</p> <blockquote><p>In other words, if you come to this country ILLEGALLY, the only right you have is to be deported right away back to your country of residence, PERIOD.</p></blockquote> <p>Whatever exact rights to due process you may have are subject to interpretation, but the Constitution is clear that even “illegals” have some such rights.</p> "Critiquing a lay reading of the Constitution’s “freedom of religion” clauses" https://inpropriapersona.com/articles/critiquing-a-lay-reading-of-the-constitutions-freedom-of-religion-clauses/ Sat, 07 Jul 2012 23:32:13 +0000 af54b65c7046d69bc0e71ac6a11abd73 <p><img class="alignright size-medium wp-image-5524" title="Gasoline Stations Find Religion" src="http://res.cloudinary.com/krisnelson/image/upload/h_202,w_300/v1514416638/Gasoline-Station-Religion_stxpxz.jpg" alt="" width="300" height="201" />In this second part of my series on <a href="https://inpropriapersona.com/series/critiquing-constitutional-readings/">typical problems in lay readings of the Constitution</a>, I will focus on the question of the freedom of religion in Michael J. Nellet’s “<a href="http://www.westernjournalism.com/how-the-left-redefined-the-term-rights/">How The Left Redefined The Term ‘Rights</a>.’”</p> <p>Nellett writes:</p> <blockquote><p>ATHEISTS claim that there is a “seperation of church and state” and they enjoy a right to “freedom FROM religion”; thus no prayer in public schools, no pledge of allegiance, God’s name is not to be uttered at all, and nothing scriptural can be displayed ANYWHERE in public (especially in or on government property.) The sad truth (for atheists anyway) is that this is a LIE! The First Amendment of our Constitution says “Freedom OF religion”, which means that religion IS protected from government interference.</p></blockquote> <p>Meanwhile, the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution actually says:</p> <blockquote><p>Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…</p></blockquote> <p>(Before we go further, we have to acknowledge that the Supreme Court has held that the 14th Amendment “<a href="https://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)">incorporates</a>” (most) of the Bill of Rights to apply to state and local governments too, not just Congress and the federal government. This is another level of interpretation that is also controversial, although it cuts across political lines — as we saw with recent <a href="http://www.oyez.org/cases/2000-2009/2009/2009_08_1521">Second Amendment rulings</a>. Also note, though, that the Bill of Rights applies only to government action, not the actions of private entities.)</p> <p>Reading the literal words above, it’s clear the Constitution <em>does not</em> actually say either “freedom of” or “freedom from” religion. Nonetheless, <em>both</em> of these interpretations of the Constitution are valid readings when the two clauses are read together. How is this possible?</p> <p>The Establishment Clause supports the idea of “freedom from religion,” since it prohibits government from establishing religion. What does this mean? Originally, it likely meant (and now we see the move to bring in “intent”) that the United States couldn’t have a state religion (like the Church of England) funded by the government — which has led to prohibitions on prayers in state-supported schools, since this suggests that the government supports one religion (even if it is non-denominational Christian) over others. Key to this is <em>state funding</em> and the perception of <em>state promotion.</em> Entities that are not state funded have no such restriction, since the First Amendment does not apply to them.</p> <p>In short, Nellett is too broad in his understanding of the limits placed on religious display. Indeed, the Free Exercise Clause underlies “freedom of” religion by <em>non-governmental</em> actors. However, Nellett is correct to say that atheists have no right to be free from religion or the religious <em>in general</em>.</p> <p>This reading of the First Amendment illustrates a few common problems in lay readings of legal documents like the Constitution:</p> <ol> <li>relying on what you <em>think</em> a document says, rather than closely reading the actual words;</li> <li>relying too much on an irrelevant distinction for the basis of your entire argument (“from” vs. “of”);</li> <li>misunderstanding the scope of a law or who or what is affected (“no prayer in public schools” is different from “nothing scriptural can be displayed ANYWHERE in public”);</li> <li>similarly, failing to realize that even “plain English” is problematic (“public” means government when you say “public schools,” but it means “where most people can see it” in the phrase “ANYWHERE in public”).</li> </ol> <p>How can readers of the Constitution avoid these problems?</p> <p>First, some legal experience and knowledge of precedent helps: incorporation isn’t obvious without some pre-existing knowledge (though you might derive it on your own) and the scope of a clause may not be clear (though it does say “Congress shall make no law,” implying that only government is limited).</p> <p>Second, and even more importantly, avoiding common reading mistakes requires stepping away from your subjective expectations of what you think something says and <em>actually reading it very closely</em> and <em>paying attention</em> to its words — and the potential ambiguities of the English language.</p> "Critiquing constitutional readings: introduction and underdetermination" https://inpropriapersona.com/articles/critiquing-constitutional-readings-introduction-and-underdetermination/ Sat, 07 Jul 2012 00:03:38 +0000 05d6a1fae9902e3b8d03f6d381ad8174 <figure id="attachment_5534" style="max-width: 300px" class="wp-caption alignright"><a href="http://www.westernjournalism.com/how-the-left-redefined-the-term-rights/"><img class="size-medium wp-image-5534" title="How the Left Redefined Rights" src="http://res.cloudinary.com/krisnelson/image/upload/h_208,w_300/v1514417605/Left-Redefined-Rights-760x526_yxyraq.jpg" alt="" width="300" height="207" /></a><figcaption class="wp-caption-text">&#8220;How The Left Redefined The Term &#8216;Rights'&#8221; by Michael J. Nellett</figcaption></figure> <p>There are many challenges when lay people “read” the U.S. Constitution. Most lay interpreters, regardless of political belief, ignore the centuries of Constitutional interpretation that gives additional meaning to everything in the document. We are, after all, a common-law nation with a constitutional backdrop, <em>not</em> a civil-law jurisdiction where (more of) everything is in the text itself. In common-law systems like ours (and unlike France or Germany, for example), court decisions are <em>themselves</em> law — those who want complete deference to legislative decisions are arguing for a civil law system where judicial decisions do not form binding precedent.</p> <p>But even without considering the centuries of precedent that give meaning to the written words, many lay readers infuse even the “plain meaning” of written law with their own interpretations. In short, they struggle with the kind of “close reading” that lawyers (and others) utilize.</p> <p>On the other hand, they sometimes invest <em>too much</em> power into specific words (“of” vs. “from,” for example) — close reading like this is indeed critical to interpreting law, but no individual word or phrase alone is entirely determinative.</p> <p>Adding to the confusion is the problem of what is known in the philosophy of science as <em>underdetermination</em>: the words (evidence) we have permit multiple interpretations. What we have is not enough to definitively determine only <em>one</em> meaning; multiple interpretations are supportable by the text. (This doesn’t mean <em>any</em> interpretation is possible, nor that some are not better than others, only that more than a single interpretation is both possible and reasonable.)</p> <p>The problem of underdetermination is exactly why our legal system is an adversarial one. Having two sides battle as they put forth competing interpretations is a good (although not the only) method of finding a “best” interpretation or application of the law. This is also why it is possible to have 5-4 decisions from the Supreme Court without either side necessarily being <em>wrong</em> about the law (and why we end up defining “wrong” as being in conflict with the Court majority, since otherwise we’d lack any definitive reading, and might well be caught in the morass of relativism, <em>a.k.a.,</em> politics).</p> <p>To illustrate some of these challenges, I think it’s useful and instructive to critique a specific analysis of the Constitution. At the moment, it is conservative, libertarian, and right-wing analysts who generally spend the most time explaining what the Constitution means. Liberal commentators have generally stuck to criticizing right-wing versions of Constitutional meaning or written analyses of interest mostly to scholars. <a href="http://www.thenation.com/article/157904/stealing-constitution">Garrett Epps writes</a>:</p> <blockquote><p>Some of the responsibility lies with progressive legal scholars, who are well situated to explain the Constitution to the public. It isn’t that they have failed; it’s that they seldom try. Scholars from top schools hold forth with polysyllabic theories of hermeneutics that ordinary citizens can’t fathom. Meanwhile, conservatives don’t hesitate to speak directly to the public.</p></blockquote> <p>In the absence of liberal attempts to explain the Constitution, I will accordingly focus initially on a right-leaning Constitutional reading provided by Michael J. Nellet, written for <a href="http://www.westernjournalism.com/">The Western Center for Journalism</a>: “<a href="http://www.westernjournalism.com/how-the-left-redefined-the-term-rights/">How The Left Redefined The Term ‘Rights.’</a>” Nellett’s commentary attacks the idea that “people are entitled to certain privileges as constitutional ‘rights.’” The Western Center for Journalism works “to provide quality journalism and reporting by exposing bias and falsehoods in the liberal, mainstream media.”</p> <p><em>If anyone would like to contact me with a liberal example to critique, I would appreciate it.</em></p> <p><strong>You can read my </strong><a href="https://inpropriapersona.com/series/critiquing-constitutional-readings/"><strong>articles examining Nellett’s take on the Constitution</strong></a><strong>, including discussions of </strong><a href="https://inpropriapersona.com/critiquing-a-lay-reading-of-the-constitutions-freedom-of-religion-clauses/"><strong>religion</strong></a><strong>, </strong><a href="https://inpropriapersona.com/limits-of-interpretation-critiquing-a-lay-reading-of-the-14th-amendment/"><strong>equal protection</strong></a><strong>, and </strong><a href="https://inpropriapersona.com/abortion-and-constitutional-underdetermination/"><strong>abortion</strong></a><strong> over the next couple of weeks.</strong></p> "The shifting critics of experts and expert agencies" https://inpropriapersona.com/articles/the-shifting-critics-of-experts-and-expert-agencies/ Mon, 02 Jul 2012 20:49:10 +0000 a19d59bf69e51ccbfecf61dcb82295d2 <p><a href="http://www.flickr.com/photos/niosh/5589798766/in/photostream/"><img class="alignright size-medium wp-image-5662" title="Fishing Forum" src="http://res.cloudinary.com/krisnelson/image/upload/h_225,w_300/v1514416575/Fishing-Forum_zh8onv.jpg" alt="" width="300" height="225" /></a>During the 1960s, left-leaning critics in the United States began to attack expert agencies they had once supported. Increasingly, critics saw agencies like the <a href="http://www.fcc.gov/">Federal Communications Commission (FCC)</a> not as bastions of objective experts who could check the excesses of the market, but rather as &#8220;captured&#8221; government appointees in bed with the industries they regulated (<a href="http://www.jstor.org/stable/2151663">Robert B. Horwitz, &#8220;Judicial Review of Regulatory Decisions: The Changing Criteria,&#8221;</a> 143).</p> <p><a href="http://en.wikipedia.org/wiki/History_of_Solar_System_formation_and_evolution_hypotheses">Capture theory</a>, while not always in line with the actual history of specific agencies, nonetheless gained widespread interest after its articulation in the 1950s by Marver Bernstein. The theory suggests that agencies are created by legislatures to solve problems they do not fully understand. The new agency sets out to understand and then solve the problem, but over time its experts grow close to the experts in the problematic industries it is supposed to control and oversee. In time, then, the agency aligns its interests with those who share the same concerns and understandings  &#8212; and thus becomes &#8220;<a href="http://books.google.com/books?id=cx65jLOiHQQC">captured by the industry it is supposed to regulate</a>.&#8221;</p> <p>Left-leaning critics in the 1960s especially saw agency capture as corruption, and responded with vigorous advocacy for new procedures that would allow voices beyond those of industry to be heard in agency decision-making. However, this liberal attack on &#8220;captured&#8221; agencies &#8220;undermined the deference to expertise,&#8221; and the courts in turn responded to the evidence and criticisms by &#8220;requir[ing] agencies to ensure access to rulemaking&#8221; (Horwitz, &#8220;Judicial Review of Regulatory Decisions: The Changing Criteria,&#8221; 146). Rather than trusting in the virtue of objective experts, courts began to agree with critics who advocated for the importance of considering broad public perspectives, in addition to technical or business issues.</p> <p>The 1960s brought a new focus on citizen involvement in agency decisions. &#8220;Openness&#8221; was the &#8220;antidote to self-interest and to corruption masquerading as expertise&#8221; (<a href="http://books.google.com/books?id=oK0QpgVfIN0C">Porter</a> 198). The 1966 case, <em>Office of Communication of United Church of Christ v. FCC</em>, 359 F. 2d 994, exemplified this trend:</p> <blockquote><p>This was the case that began the process of opening the regulatory and judicial processes to everyday citizens by granting legal “standing” to citizens. The expansion of standing enabled regular citizens to be heard before regulatory agencies and to bring actions in court, amplifying the amounts and types of political issues taken up in the public arena. &#8212; Robert B. Horwitz, &#8220;Broadcast Reform Revisited: Reverend Everett C. Parker and the WLBT Case.&#8221;</p></blockquote> <p>The attempt to bring openness and greater democracy to agency decision-making succeeded in bringing greater citizen scrutiny and input to the exercise of expertise. It came as a reaction to behind-the-scenes decisions that appeared to favor established interests. Thus, citizen-activists fought against agencies that appeared too close to the companies they regulated  &#8211;  and often succeeded in opening up their processes. By the 1970s, the focus by left-leaning advocates was on &#8220;democratic participation and deliberation on the part of the citizens themselves&#8221; (<a href="http://books.google.com/books?id=Wzbx-2xSGtUC">Fisher</a> 36).</p> <p>But this didn&#8217;t necessarily result in <em>better</em> decisions, despite Fischer&#8217;s argument that public participation strengthened both objectivity and fairness (<a href="http://books.google.com/books?id=Wzbx-2xSGtUC">Fisher</a> 41). Agencies responded with a greater use of, in <a href="http://books.google.com/books?id=oK0QpgVfIN0C">Porter’s terms</a>, &#8220;mechanical objectivity&#8221; in place of expert judgment.</p> <blockquote><p>By the late 20th century, the critiques used to attack agency expertise began to be turned against scientific and medical expertise more generally. Thus, anti-vaccination campaigners today accuse medical experts of profiting from vaccines and acting as &#8220;willing conspirators cashing in on the vaccine &#8216;fraud&#8217; or pawns of a shadowy vaccine combine.&#8221; &#8212; <a href="http://www.ncbi.nlm.nih.gov/pubmed/19478850">Liza Gross, &#8220;A broken trust: lessons from the vaccine-autism wars.&#8221;</a></p></blockquote> <p>What was once an attack on an FCC that consisted of former broadcast executives has become an attack on doctors who favor broad public-health mandates and on climate scientists who warn about the dangers of human-induced climate change.</p> "Deliberative democracy in the face of irrationality and distrust" https://inpropriapersona.com/articles/deliberative-democracy-in-the-face-of-irrationality-and-distrust/ Wed, 06 Jun 2012 00:35:39 +0000 76fb499bc981189b64e6d422c97816f1 <p><img class="alignright size-medium wp-image-5546" title="Democracy and Expertise" src="http://res.cloudinary.com/krisnelson/image/upload/h_240,w_300/v1514416633/Democracy-and-Expertise_moqywh.png" alt="" width="300" height="240" />Frank Fischer’s <a href="http://www.amazon.com/Democracy-Expertise-Reorienting-Policy-Inquiry/dp/0199565244"><em>Democracy and Expertise: Reorienting Policy Inquiry</em></a> argues that the public in the late twentieth and early twenty-first centuries has increasingly gown critical and distrustful of the professions and their practices (21). The “professions” consist of experts who, in essence, “deal with particular problems that relate to the application of knowledge to society” or, drawing on the work of Daniel Bell, “specialize[] in placing knowledge in larger applied contexts than do the scientists generating it” (18, 20). Fischer does not simply mean applied scientists — engineers, for example — when he speaks of those who make up the profession. Instead he means a whole “professional class,” generally university educated and including “medical doctors, lawyers, religious pastors, career military officers, university professors, and civil servants,” amongst others (19).</p> <p>The early-to-mid twentieth century saw an increasing focus on “value-neutral” expertise of professionals, a focus that relates closely to the scientific emphasis on objectivity and neutrality advocated by theorists like Robert Merton. This was combined with professional ideals of efficiency and productivity, all focused on improving society and not one’s own income (30-31).</p> <p>Critics in the 1960s challenged these professional ideals. Students raised on radical anti-war protests and civil rights advocacy began to articulate a social-justice vision for professional activities, and advocated for “progressive social change” through professional activism (33). Relatedly, new challenges emerged “value-neutral” technical knowledge in an effort to get professionals to work towards improving society (33). But these socially conscious professionals ended up, according to Fischer, undermining their own authority in an effort to bring about social change, and thus undermined their own capacity to bring about change, especially at the community level (36).</p> <p>The end result of Fischer’s analysis is to suggest that, while professional experts in the twentieth century sold themselves as “social trustees” who were the best people to fix social problems. Professional experts brought value-neutral knowledge and practices to bear on problems and would, thanks to their objectivity and focus on efficiency and productivity, craft solutions that would benefit society as a whole. But the 1960s, especially, saw social reformers <em>within</em> the professions question the reality of this claim. These reformers critiqued the neutrality of other professionals and, through attempts to focus more directly on social reforms and citizen participation, ended up undermining the authority of professional experts more broadly.</p> <p>Although not discounting — and indeed, encouraging through the book — the potential for professional experts to help solve social challenges, Fischer emphasizes instead the importance of fostering citizen participation through what he terms “deliberative democracy” (47).</p> <p>Fischer believes that democratic government requires more than citizen “participation” (voting, campaigning, lobbying) — it requires citizen “deliberation” (48) too. A key question , though, especially give the complex nature of modern society and the many technical questions that underlie many policy decisions , is whether it is even realistic to expect lay citizens to effectively deliberate and contribute to decisions on policy questions (48-49)? And even it is possible, is it even <em>good</em> for society (51)? After all, there is a reason that the United States was founded as a representative republic, <em>not</em> a direct democracy (51). Isn’t rule by expert elites, trained in technocratic issues, better than the racism, intolerance, religiosity, and emotional decision-making of the masses (51)?</p> <p>Fischer believes that a</p> <blockquote><p>strong case can be made that the general citizenry, or at least a significant portion of it, is more capable of making informed, intelligent assessments about public issues than many conservative politicians, social scientists, and opinion researchers suggest” (57).<br /> Fischer suggests that the real problem is not actually ignorance or inability, but rather “the failure of the political system to socialize its citizens for an active role” (61). People must learn to be political, in school, at home, and through political opportunities that are often lacking in the U.S. two-party system (60-61).</p></blockquote> <p>But what is “deliberation”? According to Fischer (who cites Chambers), what he means by “deliberation” is</p> <blockquote><p>debate and discussion aimed at producing reasonable, well-informed opinion in which participants are willing to revise preferences in light of discussion, new information, and claims made by fellow participants (77).</p></blockquote> <p>This definition is very much in line with classic liberal tradition, especially the arguments by those such as John Stuart Mill. It is also very close to the “marketplace of ideas” conception that underpins the American First Amendment.</p> <p>Fischer acknowledges that a focus on reason and rationality may neglect other modes, like personal experiences, feelings, and religious belief (79). He suggests that these can be accommodated by requiring that decisions be “mutually acceptable” (79) — but is this truly possible in the case of, for example, religious faith? Religion is a core exclusion from public and governmental reasoning in the American First Amendment because, as Mill suggested, religious belief is very often not open to change based on reasoned analysis by others. Faith is not reason. Thus, how can American society reach a “mutually agreeable” deliberative decision on issues like abortion, stem cells, and the death penalty if faith-based arguments are permitted? But without them, how can full citizen participation be achieved? In short, what do you do with illogical citizens?</p> <p>Fischer does not solve this problem. But it is not Fischer’s problem alone. For the liberal-democratic tradition, the problem of the irrational, emotional masses is long-standing one that has yet to be solved by any modern democracy. In the United States, we began with unelected Senators, rather like the United Kingdom’s hereditary House of Lords. These “upper houses” of elites were expected to act as a check on the emotions of the masses. In the twentieth century, we turned increasingly to professionalized experts to fill this elite role — but especially in the United States, intellectual elites have fallen into disfavor much as hereditary lords once did.</p> <p>What, then, can we replace these elites with? Fischer suggests that we create new, deliberative processes that bring citizens <em>together</em> with experts. There is no need for beheading the experts in the French style; we should instead harness their knowledge to facilitate citizen involvement.</p> <p>His solutions still presume that rationality and reason will prevail, but his advocacy of what he calls “practical reason” (courtroom style reasoning instead of formal logic) and deliberative processes provides hope that democracy is neither impossible nor dead.</p> "Nineteenth-century America was not a libertarian utopia" https://inpropriapersona.com/articles/nineteenth-century-america-was-not-a-libertarian-utopia/ Fri, 18 May 2012 04:16:39 +0000 4162b6fc99592760d57dd13e12ee576a <p><a href="https://inpropriapersona.com/nineteenth-century-america-was-not-a-libertarian-utopia/work-train-1880-e1337287219364/" rel="attachment wp-att-5600"><img class="alignright size-medium wp-image-5600" title="Work Train, c. 1880" src="http://res.cloudinary.com/krisnelson/image/upload/h_211,w_300/v1514416608/work-train-1880-e1337287219364_a09hei.jpg" alt="" width="300" height="211" /></a>There is a commonly held perception that the United States in the nineteenth century lacked rules and regulations that we today commonly associate with intrusive &#8220;big government.&#8221; This trope holds that, instead, the nineteenth century was &#8220;an age of private contract and public constitutional limitations&#8221; (<a href="http://www.amazon.com/gp/product/0807822922/ref=as_li_ss_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0807822922&amp;linkCode=as2&amp;tag=commentinprop-20">Novak</a> 12). Libertarians like Jacob G. Hornberger write:</p> <blockquote><p>The principles are simple to enumerate: No income taxation (except during the Civil War), Social Security, Medicare, Medicaid, welfare, economic regulations, licensure laws, drug laws, immigration controls, or coercive transfer programs, such as farm subsidies and education grants.  &#8211; Jacob G. Hornberger, &#8220;<a href="http://web.archive.org/web/20121111005457/http://www.fff.org/freedom/fd0911a.asp">Liberal Delusions about Freedom</a>&#8220;</p></blockquote> <p>He notes, too, the lack of regulatory agencies like the EPA and OSHA, and the right for everyone &#8220;to pursue an occupation or trade without seeking the permission of the government.&#8221;</p> <p>The first, and simplest response to this, of course, is &#8220;who is &#8216;everyone'&#8221;? African-Americans were mostly enslaved until after the Civil War &#8211; were they free &#8220;to pursue an occupation or trade&#8221;? Did the Jim Crow laws of the late nineteenth-century South provide extra liberty for those former slaves?</p> <p>Women could not vote and were &#8211; at various times, more or less &#8211; the property of their husbands. Were they &#8220;free&#8221;? (See David Boas, &#8220;<a href="http://reason.com/archives/2010/04/06/up-from-slavery/1">Up from Slavery</a>,&#8221; for more on this.) Thus, any nineteenth-century libertarian &#8220;utopia&#8221; is immediately undermined by the lack of freedom for so many.</p> <p>But beyond this simplistic and obvious critique lies a deeper reality: Americans in the nineteenth century did not live without rules, regulations, and laws, and did not rely strictly on private contract and personal responsibility to conduct business or to handle social relations.</p> <p>William J. Novak, in <a href="https://books.google.com/books?id=8vQWaL-dT0EC">The People’s Welfare: Law and Regulation in Nineteenth-Century America</a>, writes:</p> <blockquote><p>[It] was a <em>public</em> society in ways hard to imagine after the invention of twentieth-century privacy. Its governance was predicated on the elemental assumption that public interest was superior to private interest. Government and society were not created to protect preexisting private rights, but to further the welfare of the whole people and community. (Novak 9)</p></blockquote> <p>I have previously written, for example, about the extensive use of the state police power (which has little to do with modern &#8220;police&#8221;) to impose <a href="https://inpropriapersona.com/smallpox-inoculation-and-quarantine-in-colonial-america/">coercive quarantine requirements in colonial America</a>:</p> <blockquote><p>Quarantine &#8230; was state-sponsored. It would be applied to incoming ships if smallpox was suspected, but there was no articulated provision for allowing any particular to leave quarantine early. The concept was to protect the public as a whole, not to preserve individual liberties.  &#8211; Kristopher Nelson, &#8220;<a href="https://inpropriapersona.com/smallpox-inoculation-and-quarantine-in-colonial-america/">Smallpox inoculation and quarantine in colonial America</a>.&#8221;</p></blockquote> <p>Novak lists the variety of New York laws passed between 1781 and 1801, all focused on regulating life in the young state. Regulations focused on &#8220;lotteries; hawkers and peddlers; the firing of guns; usury; &#8230; rents and leases; &#8230; counselors, attorneys, and solicitors; &#8230; strong liquors; &#8230; debtors and creditors; poor relief&#8221; and much more (Novak 15). This was <em>not</em> <a href="http://web.archive.org/web/20121111005457/http://www.fff.org/freedom/fd0911a.asp">Hornberger&#8217;s nineteenth century</a>, free of &#8220;welfare, economic regulations, licensure laws, [and] drug laws.&#8221;</p> <p>Again under the aegis of &#8220;police power,&#8221; Novak notes, &#8220;railroads were ordered to reconstruct bridges for the public welfare &#8230; and private dwellings were summarily destroyed when found inimical to the public health or safety&#8221; &#8212; and without compensation to the owners (Novak 16).</p> <p>Still, this was <em>different</em> than modern regulation in a key sense: it was local and state-based, <em>not</em> federal and nationwide. The reach of an individual law was typically only as far as the city, county, or state line. But they were small, localized invasions, not national ones. And as the federal reach grew, so the importance of the federal Constitution and its protections grew too.</p> <p>The failure of this local jurisdictional model (which is not equivalent to the &#8220;small government&#8221; call of modern conservatives) came with the explosion of interstate commerce towards the end of the nineteenth century, when corporations (led by railroads) grew beyond the jurisdictional reach of any individual locality or state. Thus, by the late nineteenth century, robber barons set their own rules, and monopolies grew more powerful than governments.</p> <p>The coalescing of economic &#8211; and thus effective political &#8211; power in the hands of a few monopolists set the state for the twentieth-century growth of the modern, federal, nationwide regulatory and administrative state that libertarians rail against.</p> <p>The big twentieth-century shift was not from an unregulated life to a regulated one, but rather from thousands of local rules that differed across the country to concentrated, interstate rules that applied everywhere &#8211; all in response to problems that themselves crossed state lines and jurisdictions.</p> <p>The nineteenth century was different than the twentieth, but it was <em>not</em> a libertarian utopia of liberty and freedom from rules and regulations &#8211; those were everywhere, and could easily be more invasive (laws regulating morals, like forced Sunday closers of business are a good example) than anything the twentieth century brought us.</p> "Underdetermination and the balance between religion and science" https://inpropriapersona.com/articles/underdetermination-and-the-balance-between-religion-and-science/ Thu, 26 Apr 2012 21:26:49 +0000 1d4db665eb9790036fe6d974720ac4d8 <p><a href="https://inpropriapersona.com/underdetermination-and-the-balance-between-religion-and-science/michelangelo_creation_of_adam_04/" rel="attachment wp-att-5667"><img class="alignright size-medium wp-image-5667" title="Michelangelo Creation of Adam" src="http://res.cloudinary.com/krisnelson/image/upload/h_232,w_300/v1514416571/Michelangelo_Creation_of_Adam_04_tujw9l.jpg" alt="" width="300" height="232" /></a>The <a href="http://en.wikipedia.org/wiki/Duhem%E2%80%93Quine_thesis">Duhem-Quine thesis</a>, when simplified, explains how a given set of facts can produce more than one apparently true conclusion: essentially, different background assumptions lead to different outcomes. A related concept is known as underdetermination: that a given set of evidence can be explained by more than one — potentially conflicting — theory.</p> <p>One pertinent example: most biologists look at the diversity of species and say that <a href="http://en.wikipedia.org/w/index.php?search=evolution&amp;go=Go">evolution</a> by natural selection (with at least a hint of randomness) is the best explanation, whereas believers in <a href="http://en.wikipedia.org/wiki/Intelligent_design">Intelligent Design</a> see God’s hand at work. Given a certain view of available evidence, both explanations might be possible (especially if an all-powerful God simply creates everything, including fossils, in situ). So how can we resolve this problem whereby a set of facts can justifiably be argued to support multiple potential theories?</p> <p>One approach is to limit ourselves to certain kinds of theories as potential explanations: science tends to allow for only theories that are potentially testable, verifiable, falsifiable, etc. Most scientists say, despite arguments to the contrary, that the existence of a divine presence guiding evolution is simply out of bounds for scientific inquiry. It’s a matter for faith, not empirical inquiry; it’s religion, not science.</p> <p>Of course, as <a href="http://books.google.com/books?id=7_Ba1sm0jP4C">John Hedley Brooke</a> points out, the meaning of the terms “science” and “religion” has changed over time, and “it is more appropriate to speak of ‘sciences’ and ‘religions.’ When we do, any simple dichotomy loses its rigidity” (297). Thus, for example, the term “science” once included any organized body of knowledge (which would have included theology), though now it has a more specific meaning. “Religion,” too, only emerged as a useful term when “comparative approaches were needed for the analysis of different cultures … in the Enlightenment” (297). Still, the distinction is at least analytically useful, and however historically suspect, it is relied upon by most writers today.</p> <p>Another approach to managing the (potentially illusory) conflict between science and religion is favored by <a href="http://en.wikipedia.org/wiki/Owen_Gingerich">Owen Gingerich</a>, astronomer and author of <a href="http://www.amazon.com/Gods-Universe-Owen-Gingerich/dp/0674023706%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0674023706">God’s Universe</a>. He turns to Aristotle to help differentiate two kinds of explanation put forth by science and religion. Put in Aristotelean terms, faith can be seen as a search for “final” causes, while traditional science could be said to stick instead to “efficient” causes. There is thus no conflict between science and religion, and no worries about underdetermination traceable to this conflict, since each explains different things.</p> <p>Gingerich looks to Blaise Pascal’s notion that “some things only the heart knows” to explain this idea and justify his belief in (small case) “intelligent design.” Since science cannot know or determine certain truths (final causes, in Aristotelian terms), we can freely posit a (distant) intelligent designer without worrying about stepping on scientific concepts of proof. In essence, two truths become simultaneously possible, because they occupy different domains of truth. Intelligent Design (not <a href="http://en.wikipedia.org/w/index.php?search=Creationism&amp;go=Go">Creationism</a>, and not the lower-case “intelligent design” of Gingerich), on the other hand, believes that science can be used to access the truth of an intelligent creator, and that this search is scientific.</p> <p>Creationism, on the other hand, tends to reject science more firmly (but not, interestingly, technology). It inherits from a tradition of the literal exegesis of scripture used, for example, in the 16th century. Of course, today’s <a href="http://en.wikipedia.org/wiki/Biblical_literalism">Biblical literalism</a> is only related to, but not identical with, 16th-century exegesis. After all, bringing in a passage of scripture today is no longer a means of shutting down debate.</p> <p>So how did followers of Copernicus in the 16th century deal with the issue of causation, given the power of <a href="http://en.wikipedia.org/wiki/Exegesis">Biblical exegesis</a> at the time? They did so by arguing that scripture itself underdetermines potential explanations — even if it can shut down blatantly conflicting theories. Relatedly, Johannes Kepler tried an accommodation approach with literalism. He maintained that God, in order to be understood by normal people, caused the Bible to be written in ordinary language. This is why there are no discussions of epicycles in the Bible. The Bible thus accommodates ordinary folk with a different, non-scientific vocabulary that, if read correctly, does not conflict with science.</p> <p>Of course, many — most? — of today’s scientists simply step outside of the argument, and point to materialist, naturalistic explanations as being all that is necessary for science — certainly they are the only valid scientific theories — even in religion can provide different kinds of explanations (which may or may not be important to the scientists personally). And how do they often justify this? Because these explanations work. Certainly this is the approach taken by most engineers and developers of technology, and perhaps, then, this is why Christian fundamentalists and Muslims have no trouble reconciling their faith with structural engineering or software development. They focus on the science that works in a materialist sense, and not the science that raises uncomfortable questions (evolutionary biology, for instance).</p> <p>Alternatively, if this approach to dealing with underdetermination is dissatisfying, then there is always the choice to go to absolute knowledge, as <a href="http://en.wikipedia.org/wiki/David_Bloor">David Bloor</a> reminds us: if the Pope says it’s true, then no doubt exists, and we escape the problem of underdetermination and uncertainty. The <a href="http://www.va/">Catholic Pope</a> is not the only option, of course. Islam, despite its lack of central authorities, also relies on the authority of absolute knowledge — revelation from the Qur’an — to solve the problem of underdetermination. <a href="https://inpropriapersona.com/was-medieval-islamic-culture-inhospitable-to-science/">Medieval Islam</a> appears to have successfully negotiated any potential conflict between <a href="http://en.wikipedia.org/wiki/Quran">Qur’anic</a> knowledge and scientific knowledge. <a href="https://inpropriapersona.com/modern-islam-and-science-an-article-by-seyyed-hossein-nasr/">Modern Islam</a>, on the other hand, is arguably still searching for the proper balance. Modern evangelical Christianity, too, seeks a new balance between science and faith.</p> "Objectivity, science, and (a)political action" https://inpropriapersona.com/articles/objectivity-science-and-apolitical-action/ Mon, 23 Apr 2012 21:28:44 +0000 675848156ef24e4effe9fff842bec308 <p><a href="https://inpropriapersona.com/objectivity-science-and-apolitical-action/trust-in-numbers/" rel="attachment wp-att-5606"><img class="alignright size-medium wp-image-5606" title="Trust in Numbers" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_205/v1514416605/trust-in-numbers_qmzxdf.jpg" alt="" width="205" height="300" /></a><a href="http://en.wikipedia.org/wiki/Theodore_M._Porter">Theodore M. Porter</a>, in <em>Trust in Numbers</em>, argues that the American distrust of elites — and of government itself — has led to a focus on “mechanical objectivity,” or <em>rules</em> to make decisions. In many ways similar to what American jurists call “<a href="http://en.wikipedia.org/wiki/Due_process">procedural due process</a>,” the idea is to diminish the necessity of <em>personal judgement</em> in favor of predictable, “transparent” processes and thus lessen the number of disputes over the outcomes of a bureaucratic decision.</p> <p>Porter quotes Richard Hammond’s observations:</p> <blockquote><p>In a country where mistrust of government is rife, the temptation to substitute supposedly impersonal calculation for personal, responsible decisions … cannot but be exceedingly strong. (195)</p></blockquote> <p>Porter goes on to refer to <a href="http://en.wikipedia.org/wiki/Sheila_Jasanoff">Sheila Jasanoff</a>‘s observation that “Americans fear expertise … yet insist that administrative decisions be depoliticized” and thus “oscillate ‘between deference and skepticism toward experts’” (195). The United States — which “continues to nourish a distinguished tradition of anti-intellectualism” — paradoxically seeks “experts who are not intellectuals or men of culture at all” (195). Porter writes:</p> <blockquote><p>Procedures have become as important as outcomes, and rules may be maintained even though they are unable to accomodate new kinds of relevant scientific information (197).</p></blockquote> <p><strong>The Courts</strong></p> <p>American courts generally emphasize process, too, encouraging the application of rules by courtroom experts: “science should mean the straightforward application of general laws to particular circumstances” (195). Attorneys attack courtroom experts for having personal opinions and unique approaches to their studies. “General acceptability” was the core component of <em>Frye</em>, and the modern standard for acceptance of expert testimony (<em>Daubert</em>) emphasizes this factor too (though it expands beyond it).</p> <p>The Supreme Court’s “hard look” doctrine emphasizes this, too. That doctrine requires judicial review of agency decisions are “arbitrary and capricious.” It requires administrative agencies to maintain a proper record of evidence and actions, adequately consider evidence and various analyses, and explain their reasoning. The doctrine is not intended to emphasize <em>outcomes</em>, but rather to encourage objective process. Even this doctrine, aimed as it is at process and not outcomes, has been attacked as too political (i.e., not objective enough):</p> <blockquote><p>Administrative law doctrines for reviewing agency rulemaking currently give judges a significant amount of discretion to invalidate agency rules. Many commentators have recognized that this has politicized judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration. &#8212; Keller, Scott A., “<a href="http://works.bepress.com/cgi/viewcontent.cgi?article=1000&amp;context=scott_keller">Depoliticizing Judicial Review of Agency Rulemaking</a>,” 2009.</p></blockquote> <p><strong>United States vs. Europe</strong></p> <p>The American approach — the way agencies make decisions and the way courts review those decisions — is distinctly different from how it’s done in Europe. Although they vary in their details, in general, all European approaches “are capable in some measure of formulating policies and determining how to apply them through negotiation with the interested parties, behind closed doors” (197). For good or ill, European states tend to institutionally trust their elite experts and the agencies they staff — but American agencies today lack this kind of citizen trust:</p> <blockquote><p>American regulatory agencies are forced to seek refuge in ‘objectivity,’ adopting formal methodologies for rationalizing their every action (197).</p></blockquote> <p>It hasn’t always been this way in the United States. American administrative agencies really only grew as outgrowths of the <a href="http://en.wikipedia.org/wiki/New_Deal">New Deal’s</a> attempt to rationalize, control, and improve the economy during the <a href="http://en.wikipedia.org/wiki/Great_Depression">Great Depression</a>. These agencies — and the few that preceded them — were staffed by experts, driven by numbers, and depended on expert judgment and expertise in ways that are quite similar to their modern European counterparts (198).</p> <p><strong>Citizen Standing and Openness</strong></p> <p>The 1960s brought a new focus on citizen involvement in agency decisions. “Openness” was the “antidote to self-interest and to corruption masquerading as expertise” (198). The 1966 case, <em>Office of Communication of United Church of Christ v. FCC</em>, 359 F. 2d 994, exemplified this trend:</p> <blockquote><p>This was the case that began the process of opening the regulatory and judicial processes to everyday citizens by granting legal “standing” to citizens. The expansion of standing enabled regular citizens to be heard before regulatory agencies and to bring actions in court, amplifying the amounts and types of political issues taken up in the public arena. &#8212; Horwitz, Robert, “Broadcast Reform Revisited: Reverend Everett C. Parker and the ‘Standing’ Case,” <em>The Communication Review</em>, Vol. 2, No. 3 (1997), pp. 311-348.</p></blockquote> <p><strong>Problems and Contradictions</strong></p> <p>The attempt to bring openness and greater democracy to agency decision-making succeeded in bringing greater citizen scrutiny and input to the exercise of expertise. It came as a reaction to behind-the-scenes decisions that appeared to favor established interests. Thus, citizen-activists fought against agencies that appeared too close to the companies they regulated — and often succeeded in opening up their processes.</p> <p>But this didn’t necessarily result in <em>better</em> decisions.</p> <p>Agencies responded with a greater use of, in Porter’s terms, “mechanical objectivity” in place of expert judgment. Additionally, the critiques used to attack agency expertise began to be turned against scientific and medical expertise more generally. Thus, anti-vaccination campaigners accuse medical experts of profiting from vaccines and acting as “<a href="http://www.ncbi.nlm.nih.gov/pubmed/12089115">willing conspirators cashing in on the vaccine fraud’ or pawns of a shadowy vaccine combine</a>.” What was once an attack on an FCC that consisted of former broadcast executives has become an attack on doctors who favor broad public-health mandates and on climate scientists who warn about the dangers of human-induced climate change.</p> "David Noble on “The Religion of Technology”" https://inpropriapersona.com/articles/david-noble-on-the-religion-of-technology/ Fri, 20 Apr 2012 00:15:38 +0000 f499371ee7a1d90ebcd4cdedc2cb589d <p><img class="alignright size-medium wp-image-5542" title="Religion of Technology" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_225/v1514417505/Religion-of-Technology-394x526_ffzo8s.jpg" alt="" width="224" height="300" />In <a href="http://www.amazon.com/gp/product/0140279164/ref=as_li_ss_tl?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0140279164">The Religion of Technology: The Divinity of Man and the Spirit of Invention</a>, David Noble investigates the Western relationship between religion and technology.</p> <p>Millenarianism — the belief in the end of this world and the coming of the next — is, in Noble’s view, a key driver of early proto-scientists, at least those in seventeenth-century England. There was, he argues, a sense at the time that the Fall of Adam from Eden “could be reversed” (45).</p> <p>He describes these “Puritan Baconians” and their <a href="http://en.wikipedia.org/w/index.php?search=utilitarian&amp;go=Go">utilitarian</a> and millenarian outlook as giving formative shape to modern science. He argues that these early scientists were really technologists: the early founders of the “new scientific academies … tended to view science as technology … as an enterprise … bound up … with the useful arts” (57).</p> <p>Connected with this utilitarian perspective, for Noble, is the strong connection between scientific pioneers and early capitalist enterprise (59). He points to Robert Boyle’s father and other early Royal Society members who “were involved in such industries as tobacco, distilling, and trade” (59). (This connection is important to keep in mind when reading Noble, as he generally dislikes and distrusts the contemporary connections between science and industry.)</p> <p>Noble suggests, though, that these “founders of modern science” eventually moved away from earlier views of recovering Eden and, “with increasingly more hubris than humility,” began to speak of achieving of an understanding of divine creation itself, instead of the lesser focus on Adam’s knowledge characteristic of earlier times (62). In other words, they moved from being content with a focus on technology and “what works” to become scientists focused on questions beyond the materialistic.</p> <p>Increasingly “mechanistic scientists” began to divorce God and creation, and to view God as outside his clockwork universe. They began to imagine themselves as occupying a similar, God-like perspective, one that gazed from “outside of nature”:</p> <blockquote><p>For Newton, then, to uncover the hidden logic of the universe was to understand and in that sense identify with, the mind of its Creator. (63-65)</p></blockquote> <p>This was very different from earlier views of “God in nature” that earlier hermetic and alchemical traditions — predecessors of modern “technoscience” — held.</p> <p>In short, Noble argues that these early scientists began to dispense with a humble pursuit of the divine in nature and to instead view themselves as gods (67). (Perhaps a dislike of this hubris is why he identifies himself as a modern-day Luddite and refuses to use email.)</p> <p>In his descriptions of eighteenth century European science, Noble continues to emphasize the importance of millenarian beliefs to the science and technology of this time. For example, Joseph Priestly, known for his work in electricity and with oxygen, insisted on the connections between his scientific work and his religious views, which included a belief in prophecy and Revelation. Priestly focused on the “practical application of science” to further the goals of “both immediate utility and millennial preparation” (71).</p> <p>But it was not just Priestly. Religious belief generally motivated early scientists in this time, according to Nobel, who writes that Michael Faraday, known for his work with electricity, was involved in a sect of fundamentalist Christianity that focused on a very literal interpretation of the Bible (71). Charles Babbage, mathematician and industrial inventor, also focused on arguments “in favor of religion” (72). For Noble, religious belief and scientific pursuits were both unified and mutally supportive — at least in the minds of eighteenth-century European scientists.</p> <p>Noble next moves into what I think might be the most intriguing aspect of this section of his work: his investigation of the role Freemasonry, including its “devoutly religious” — if anticlerical — beliefs, played in fostering scientific advances and improving the “useful arts” (77).</p> <p>As the eighteenth century progressed, the technological Freemasons proved to be “among the earliest advocates of industrialization” and served as “midwives” at the birth of the “latest incarnation of spiritual men, the engineer” (79). Noble writes: “As the founding fathers of both the engineering profession and engineering education, the Freemasons passed on the legacy of the religion of technology to modernity’s ‘New Man’” (79).</p> <p>Moving into nineteenth-century science, Noble turns his attention to Auguste Comte and his <a href="http://en.wikipedia.org/w/index.php?search=positivist&amp;go=Go">positivist</a> system. Positivism, he argues, is “strikingly reminiscent of the Christian goal of a transcendent recovery of mankind’s original divine image-likeness and dominion over nature” (84). As with the millenarians, writes Noble, for positivists the “world’s transformation was inevitable and imminent” (84).</p> <p>Marx and the socialists shared Comte’s “technology-inspired millenariasm” and carried the old beliefs forward into a “new secular age” (86). Comte and the positivists may have rejected nineteenth-century religion as unscientific, but, according to Noble, the scientific worldview they adopted instead was remarkably like the religion it replaced.</p> <p>In a later chapter he calls “The New Eden,” Noble turns to America, where he believes “the useful arts became wedded to Adamic myths and millennial dreams” as “nowhere else before or since” (88). In America, “scientific and industrial revolutions followed in the wake of religious revival” (90). Technological inventions in America carried with them religious meanings. The telegraph, for example, was viewed as “divinely inspired for the purpose of spreading the Christian message farther … bringing closer and making more probable the day of salvation” (94).</p> <p>In nineteenth-century America, religion and technology were neither distinct nor disconnected; instead, they both reinforced and strengthened each other.</p> <p>But despite this deep connection between technology and religion, religion in the twentieth century moved away from being a driver of both technological invention and scientific innovation. Increasingly, religion has been seen as oppositional to science and technology.</p> <p>Still, for many Christians this opposition is uneccessary and even problematic. For example, Noble explains tht NASA — at least into the Shuttle years — contained many devout Christians who saw their missions to space in deeply religious terms, and saw no conflict between their scientific and religious missions.</p> <p>But what can one make, then, of the Young-Earth Creationismisms rejection of geological and evolutionary sciences? Or the ongoing attempts by Christian evangelicals to “teach the controversy” of evolution in high-school classrooms? Does this kind of fight prove Noble’s integration thesis wrong?</p> <p>While I don’t think Noble fully answers these questions, his focus on <em>technology</em> perhaps suggests an answer. <em>Science</em> — or at least, some kinds of science — are not easy for some modern Christians to accept. But technology, even <a href="http://abcnews.go.com/Technology/newt-gingrich-promises-moon-base-flights-mars-reality/story?id=15449425#.T5BUHOhWop9">missions to the Moon</a> or Mars, are much more readily reconciable with faith. They are, in older terms, explorations of God’s world, <em>not</em> challenges to God’s supremacy.</p> "Benefits of viewing the right to privacy as a property right" https://inpropriapersona.com/articles/benefits-of-viewing-the-right-to-privacy-as-a-property-right/ Thu, 19 Apr 2012 22:45:32 +0000 9c6f497eb0b9aeaaeab668d673234ea9 <p>There are many approaches to protecting privacy, but many of them run into conflicts, either with existing protections (perhaps especially the First Amendment) or with those who are suspicious of government regulation. But privacy rights do not necessarily need to be protected in a novel new form as a new right  &#8212;  one could instead leverage existing theories of property to do it.</p> <p>Additionally, if a core reason that copyright has always been compatible with the First Amendment is that it is a <em>property</em> right, then perhaps a way out of the <a href="https://inpropriapersona.com/2011/10/thinking-about-privacy-and-the-first-amendment/">conflict between privacy and freedom of speech and the press</a> is to conceive of privacy in the same way  &#8212;  as a property right. Certainly it is already on its way there, as the &#8220;<a href="http://en.wikipedia.org/wiki/Personality_rights">right of publicity</a>&#8221;&nbsp;in many jurisdictions already implicitly does so, since it provides control over unauthorized commercial use by others.</p> <p>What follows are three approaches the outline some of the benefits of doing exactly this.</p> <h3>Dissolving the Inkblot: Privacy as Property Right</h3> <p>Unsurprisingly, this is an approach libertarian thinkers have already explored. In a 1993 <a href="http://web.archive.org/web/20121202042850/http://www.cato.org/pubs/policy_report/richman.html">report for the Cato Institute</a>,&nbsp;Sheldon Richman argues for a vision of privacy “that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.” Richman grounds his vision of the right to privacy as a property right embedded in the Constitution:</p> <blockquote><p>That the propertarian model of privacy has the full force of the Constitution behind it is evident in the purposes listed in the preamble to the Constitution, in the recurring express references to property, and in the protection of unenumerated rights in the Ninth Amendment.</p></blockquote> <p>He additionally argues that viewing privacy as property is supported by older case law as well:</p> <blockquote><p>[I]n&nbsp;<em>Boyd v. United States</em>&nbsp;(1886), a search and seizure case involving a businessman, Justice Joseph Bradley wrote that the constitutional guarantees securing people in their persons, houses, papers, and effects transcend the concrete case and &#8220;apply to all invasions on the part of government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.&#8221;</p></blockquote> <p>Richman argues that &#8220;propertarian privacy&#8221; provides a consistent philosophical and moral grounding for property rights that protects privacy without giving judges too much leeway:&nbsp;&nbsp;&#8220;To determine whether one has a right of privacy with respect to some act, a judge need only ask what the property rights are.&#8221; As a result, contraceptive use is protected through his right to privacy because &#8220;each party owns himself or herself. … The same is true … for persons who engage in consensual homosexual sodomy.&#8221; Child abuse &#8212; even in one’s own home &#8212; is not protected &#8220;because the child is a self-owner.&#8221; Abortion is generally protected because &#8220;the fetus comes into existence inside the body of a self-owner.&#8221; On the other hand, employers <em>may</em> ban smoking &#8212; even in an employee’s home &#8212; without violating their right to privacy because the &#8220;prospective employee can turn down the job.&#8221;</p> <p>In regards to <a href="https://inpropriapersona.com/2011/11/neil-richards-on-reconciling-data-privacy-and-the-first-amendment/">data privacy legislation</a>, Richmond’s approach would generally not protect privacy unless contractual obligations were violated (this might be seen as protecting <a href="https://inpropriapersona.com/2011/04/confidentiality-vs-privacy/"><em>confidentiality</em></a>):</p> <blockquote><p>A private firm compiles a computer data base on consumers in order to rent it to direct marketers. Privacy violation? Not if the information was originally provided freely by the consumers (or otherwise lawfully obtained) and all contractual restrictions are observed. But if information was given confidentially, divulgence should be actionable. To be sure, data can be misappropriated, stolen by computer hackers, or used in ways that violate contractual obligations. That is why there are criminal and civil courts.</p></blockquote> <h3>The Property Rights Origins of Privacy Rights</h3> <p>In <a href="http://www.thefreemanonline.org/columns/the-property-rights-origins-of-privacy-rights/">The Property Rights Origins of Privacy Rights</a>, Mary Cholpecki explores the historical connections between property and privacy. She points to two English cases as examples of this. First, in&nbsp;<em>Yovatt v. Winyard </em>(1820),&nbsp;what I might call an early trade-secrets case, the court &#8220;extended property rights protections to cover personal secrets,&#8221; namely, secret formulas for medicines used by a competitor. Cholpecki writes:</p> <blockquote><p><em>Yovatt</em>&nbsp;brings to light the interesting and important fact that &#8220;what we now call &#8216;unfair competition&#8217; and &#8216;plagiarism&#8217; and &#8216;privacy&#8217; were all wrapped together, in Yovatt’s time, under the principle of &#8216;property.'&#8221; It was only later that these concepts were separated.</p></blockquote> <p>She then discusses <em>Prince Albert v. Strange, </em>a case from 1849 in which Strange is prohibited from selling copies of etchings he had cataloged for Prince Albert:</p> <p>According to one commentator, the most significant aspect of this case and its underlying philosophy is that it rested on a right of privacy, which the court considered a type of property right.&nbsp;In fact, it appears that until 1890, no English court recognized the right to privacy independent of property rights.</p> <p>Cholpecki blames Samuel Warren and Louis Brandeis&#8217; 1890 law review article for &#8220;divorcing privacy from its historical and intellectual partner, property rights.&#8221; Because of this, she argues, in subsequent cases the courts have &#8220;muddled the parameters of the right and allowed critics to argue that the right to privacy does not exist in the Constitution.&#8221;</p> <p>She sees hope in the 1977 case of&nbsp;<a href="http://en.wikipedia.org/wiki/Moore_v._East_Cleveland"><em>Moore v. City of East Cleveland</em></a><em>, </em>where a plurality of justices united in the ruling, some of the basis of a right to privacy and some on the basis of property rights:</p> <blockquote><p>The&nbsp;<em>Moore</em>&nbsp;case illustrates the interconnectedness between privacy and property rights. Given the same set of facts, four members of the Court believed privacy rights were jeopardized, while another believed property rights were threatened. Ultimately, the two segments came together to protect the rights at stake. …&nbsp;The most enduring protection for both rights is to view each as indispensable to the other.</p></blockquote> <h3>Privacy As Intellectual Property?</h3> <p>In &#8220;<a href="http://www.jstor.org/stable/1229511">Privacy As Intellectual Property?</a>,&#8221; Pamela Samuelson explores the potential benefits and pitfalls of adopting a property-based approach to privacy protections.</p> <p>First, she writes, viewing data about oneself as private property matches an intuition many of us already have. Since people already have the legal right to exclude people from access (journals locked in a desk drawer, papers stored at home in a file cabinet, etc.), &#8220;they may have a sense that they have a property right in the data as well as a legal right to restrict access to it&#8221; (1130). Data protection laws reinforce this intuitive sense.</p> <p>This intuitive sense of property persists even though ownership of data is not the core legal framework in American law for dealing with privacy: &#8220;Indeed, the traditional view in American law is that information as such cannot be owned by any person&#8221; (1131). Although property rights are involved with Fourth Amendment protections, it is not a property right in the information <em>per se</em>, but rather a property right against trespass. The Fifth Amendment (against self-incrimination) protects a liberty interest in a kind of privacy right, but it is not a property right. If a doctor reveals confidential medical information to a newspaper, a patient’s rights &#8220;would arise under contract or privacy law, not from the existence of any property rights in this information&#8221; (1131).</p> <p>Samuelson suggests that granting individuals property rights in their own data might force companies to internalize the costs of privacy &#8212; if individuals retain property rights over their own information, even if gathered without their intervention, the companies would need to compensate them (and get permission) for the use by buying the rights, or forgo using the personal data. It would also have the side benefit of potentially increasing the quality of data collected, since individuals and companies would each have an incentive to make sure data is accurate (1133).</p> <p>Perhaps most importantly, taking a property rights approach would allow market forces and market efficiencies handle privacy concerns, without neglecting the particular desires of individual people, and without extensive (and potentially expensive) government regulations (1135-36).</p> <h3>Conclusions</h3> <p>Both Cholpecki and Richmond write from a libertarian perspective, and both believe that connecting the right to privacy with property rights will helps unify conservative and liberal positions into one that can have positive outcomes for everyone. Samuelson approaches the issue from a critical perspective, but outlines many of the important benefits that a &#8220;privacy as property&#8221; approach might give &#8212; and notes that, especially as many American today dislike government-run anything, a system of privacy rights that leverages and extends existing property rules and regulations would likely achieve significant support.</p> "Four planning rules to avoid project disasters" https://inpropriapersona.com/articles/four-planning-rules-to-avoid-project-disasters/ Mon, 16 Apr 2012 22:41:00 +0000 f916ee658cb8217fb7a7b1fc8c4723e1 <a href="https://www.amazon.com/Seeing-Like-State-James-Scott/dp/B000ORPN8I?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=B000ORPN8I" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/21lVlth3aoL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/21lVlth3aoL.jpg" alt="Seeing Like a State" /> </a> <p>One key reason to study history? To learn from the past:</p> <ol> <li>Take small steps.</li> <li>Favor reversibility.</li> <li>Plan on surprises.</li> <li>Plan on human inventiveness.</li> </ol> <p>James C. Scott presents these four rules in his book, <em>Seeing Like a State,</em> a 1998 exploration of the history of major failed state projects (like <a href="http://en.wikipedia.org/wiki/Collectivization_in_the_Soviet_Union">Soviet collectivization</a> and Tanzanian forced villagization). <em>His</em> work focuses on the necessary (for failure) intersection of state’s seeking to order a society, a “high-modernist ideology,” the existence of sufficient state power and an authoritarian desire for control, and a civil society that doesn’t resist.</p> <p><em>But what does this have to do with your latest project?</em></p> <p>Even if you aren’t planning a major state project, Scott’s advice is remarkably useful for <em>anyone</em>:</p> <p><em>First, take small steps.</em></p> <p>Scott suggests a humble approach: “presume that we cannot know the consequences of our actions in advance.” To deal with this ignorance, take small actions, then step back and observe the result. If you’re moving everyone in your company to <a href="http://docs.google.com/">Google Docs</a>, try a pilot project first and see how it works. If you’re moving all your servers to the cloud, try doing it system-by-system (or some other smaller unit), rather than all at once.</p> <p><em>Second, favor reversibility.</em></p> <p>Remember, writes Scott, “Irreversible interventions have irreversible consequences.” If you’re switching to a cloud environment, consider keeping your old servers around for a few months, just in case you need to roll back. If you’re launching a new site (perhaps in an A/B testing fashion for a pilot group), don’t destroy the old system — just in case. For programmers, Git and similar version-control systems are key to this process — and non-programmers can leverage the same idea in other contexts.</p> <p><em>Three, plan on surprises.</em></p> <p>Given a choice, “[c]hoose plans that allow the largest accommodation to the unforeseen.” If you’re planning a farm, choose and prepare land that can support a variety of crops. If you’re building an API, allow for flexibility in use — don’t try to lock developers into on way of doing things — APIs like <a href="http://json.org/">JSON</a>, for example, can be accessed by a wide variety of programming languages, and allow for much wider developer base. If you expect a maximum of 10 API calls per day per developer — make plans to handle 10,000, just in case. <a href="http://en.wikipedia.org/wiki/Cloud_computing">Cloud computing</a> excels at this kind of surprise capacity scaling.</p> <p><em>Four, plan on human inventiveness.</em></p> <p>Expect that future participants in your project will be smart enough to improve what you’ve done already. Whether your building out an agricultural water supply or creating a blogging platform, expect a dynamic future. Humans don’t just sit around and use what they’re given — they tweak it, fiddle with it, hack it. You can try to get new laws passed to limit this (hello, Hollywood), but human inventiveness is a powerful force. Use it instead of fighting it.</p> "The problem of expertise in a liberal democracy" https://inpropriapersona.com/articles/the-problem-of-expertise-in-a-liberal-democracy/ Wed, 11 Apr 2012 18:21:36 +0000 39166703d51d5886941b7b6e43d55b4a <p><a href="https://inpropriapersona.com/the-problem-of-expertise-in-a-liberal-democracy/liberal-democracy-3-0/" rel="attachment wp-att-5647"><img class="alignright size-medium wp-image-5647" title="Liberal Democracy 3.0" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_195/v1514416577/liberal-democracy-3.0_tljfry.jpg" alt="" width="194" height="300" /></a>Stephen Turner’s book, <a href="http://www.amazon.com/gp/product/0761954686/ref=as_li_ss_tl?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0761954686"><em>Liberal Democracy 3.0</em></a>, provides a useful background to the problem of expertise — especially scientific expertise — in a modern liberal democracy.</p> <p><strong>What is a liberal democracy?</strong></p> <p>First, of course, it’s important to define what a “liberal democracy” is. The term liberal, unfortunately, has acquired a negative connotation for many today, especially amongst conservatives in the United States.</p> <p>But “liberal” in this sense <em>is not</em> the opposite of “conservative”; liberal instead is aligned with governance through public decision-making and public discussion. “Liberal democracies” are thus democracies where the majority of people are eligible to vote and where, generally, the “rule of law” is established through some form of constitution.</p> <p>It is, in Stephen Turner’s definition, “government by discussion.” There is one exception: religion, because of lessons learned after centuries of religious warfare, is generally removed from the discussion as being incompatible with civil debate. This has been done either through explicit state neutrality (the First Amendment) or through the establishment of a single, state religion along with tolerance for other faiths. The United States is a liberal democracy; Saudi Arabia is not.</p> <p>An illiberal democracy might be a society in which citizens vote, but the terms of the debate are constrained through propaganda, censorship, or theology. Thus, many illiberal states, like North Korea, claim to be “democratic,” but most citizens of liberal democracies would disagree.</p> <p><strong>The problem of expertise</strong></p> <p>If free discussion and debate is core to liberalism — as Turner, backed by old-school liberal theorists like <a href="http://en.wikipedia.org/wiki/John_Stuart_Mill">John Stuart Mill</a>, argue — then anything that interferes with public debate and decision-making also moves a society away from liberalism (note, once again, that this is not the opposite of conservatism in the modern sense).</p> <p>In a classic liberal democracy, public opinion — influenced through civil discourse and debate — is the basis of political action. But how can one have an effective political discourse when only experts understand the terms of the debate? We can all understand and participate in — at least in Turner’s view — debates over, for example, the extent of the voting franchise (“votes for women!”), but how can the lay public effectively decide if tobacco ought to be classified as a drug? Or if the <a href="http://en.wikipedia.org/wiki/MMR_vaccine">MMR vaccine</a> causes autism or not? Or whether global climate change is real?</p> <p>These kinds of questions require scientific evidence to fully answer, but that evidence is difficult for non-experts to fully assess. Without the subject-area knowledge, lay participants frequently over- or under-value key evidence, confuse correlation with causation, or simply fail to follow the science.</p> <p>However, turning such decisions over to experts in the subject conflicts with a core ideal of a liberal democracy: that a public debate ought to determine public policy.</p> <p><strong>Trust</strong></p> <p>If we simply trusted experts, then practically, at least, this conflict would largely disappear. We could simply establish commissions or groups of experts to evaluate problems and then provide solutions — much as the European Union does it (though not without criticism).</p> <p>But a number of factors have combined to create a sense of distrust of experts by the American public. DDT, Three Mile Island, and Bhopal damaged the trust in science of progressives; a rise in religiosity, growing dislike of government regulation, and an increasing perception that scientists are “liberal” (in the contemporary sense) correspondingly <a href="http://www.insidehighered.com/news/2012/03/29/study-tracks-erosion-conservative-confidence-science">degraded conservatives’ trust in science</a>.</p> <p>As a result, it has become untenable to leave decisions on issues like global climate change in the hands of experts — but as a result, rational, logic-based discussion and debate by educated and informed participants — another core value of a liberal democracy — has become rare.</p> <p><strong>Solutions</strong></p> <p>Turner suggests that creating pseudo-juridical, adversarial debates by experts might increase trust in the results. After all, we trust a similar approach to administer the death penalty — but we certainly don’t trust the lawyers who control the process! It’s an interesting, if impractical, concept, partly implemented already through the tort system, but unlikely to be extended elsewhere.</p> <p>Alternatively, Turner suggests we adopt European-style commissions, but that we make them accountable to the public for their decisions in some fashion. This is effectively the path that has been adopted domestically and internationally, although it is not without its controversies — and does little to resolve the tension inherent in experts making decisions instead of the lay public.</p> <p>To re-include the public in expert decision-making — or at least to create a public capable of effectively reviewing and scrutinizing expert commissions — the only real solution I see is education. While this may be inadequate to turn average citizen into domain experts, it would at least help make citizens capable of evaluating and assessing experts themselves, along with the logical reasoning of their decisions, more effectively.</p> <p><strong>Conclusions</strong></p> <p>Although it feels like this conflict is new the tension between experts and public decision-makers is not unique to today’s liberal democracies. But I think Turner might be correct that the incredible complexity of today’s science and evidence has compounded the tension into a crisis.</p> <p>Additionally, the long-standing exclusion of religion from anything but moral decision-making — or, alternatively, the extension of science into the realm of theology — has created a new level of crisis. Free discussion in the <a href="http://en.wikipedia.org/wiki/John_Stuart_Mill">Millean</a> mode is simply impossible when faith and theology fully determine the outcome for a sizable percentage of participants.</p> <p>There is no simple solution for any of this. Education is helpful, but not decisive; transparent mechanisms of science and government also help, but are not determinative; and letters to the editor from distinguished scientists can only go so far in re-establishing scientific authority.</p> "Stephen Turner describes “The Social Study of Science before Kuhn”" https://inpropriapersona.com/articles/stephen-turner-describes-the-social-study-of-science-before-kuhn/ Tue, 10 Apr 2012 18:08:07 +0000 059026df05ecba40ca713095d2e79df3 <p><img class="alignright size-medium wp-image-5639" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_235/v1514416583/handbook-of-sts_uerisw.jpg" alt="" width="235" height="300" />Thomas Kuhn’s <a href="http://www.amazon.com/gp/product/0226458121/ref=as_li_ss_tl?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0226458121"><em>Structure of Scientific Revolutions</em></a> — in many ways established the modern field of science studies. <a href="http://scholar.google.com/scholar?cluster=16270097294232043050">Stephen Turner provides a brief, socioligist’s version</a> of the lead-up to Kuhn’s seminal book. Here’s a quick summary of his key points:</p> <p><strong>Bacon and Comte</strong></p> <p>Turner begins with Francis Bacon’s “The New Atlantis” (1627). Although Bacon’s work was more political theory than scientific article (“science” in its modern form did not yet exist, nor did “scientists”), he nonetheless put forward a theory of knowledge based on <em>induction</em> and articuled a view that valued the knowledge of experts — a knowledge based on experience rather than more traditional forms of authority (34). <em>(What about Bacon vs. Edward Coke, proponent of common law and the rule of law?)</em></p> <p>Blithly moving ahead to 1793 — when science had actually begin to emerge in a more recognizably modern form — Turner picks up the story again with Condorcet’s “promot[ion of] the idea that science was the engine of human progress.” Condorcet, says Turner, believed in science and its benefits, but also thought the “the production of these benefits required state action” (34).</p> <p>Condorcet’s main focus of state action is education — but he acknowledged that the point of that education was to create “collective submission to reason and science.” Educated citizens would choose their “intellectual betters” as leaders — essentially a “regime of expert rule, with democratic consent” (35).</p> <p><strong>Saint-Simon and Comte</strong></p> <p>Turner argues that Saint-Cimon took the implications of Condorcet’s ideas — ”that social knowledge allowed for the replacement of politics” — and radicalized them (35). Saint-Simon believed in “scientists as the saviors of society,” and argued — in a pre-Marxist fashion — that “the rule of main over man would be replaced by the ‘administration of things’” (35).</p> <p>Comte, secretary to Saint-Simon and the founder of the new discipline of “sociology,” turned Saint-Simon’s ideas into “Positivism,” a new philosophy of science <em>and</em> politics (35-36). Comte’s Positivism reject the “liberalism” of John Stuart Mill (and other English philosophers like John Locke) in favor of the rule of the expert (36). Science would provide the model “for overcoming the ‘anarchy of opinions’ by providing consensus” (36). The “authority of science,” he believed, ought to “be imposed on the ignorant, just as the dogmas of Catholicism had been so effectively imposed in the past” (37).</p> <p><strong>John Stuart Mill</strong></p> <p>In the mid-nineteenth century, Mill advocated “liberalism” — a political theory grounded in governance by <em>discussion</em> that invested power in the general public — as opposed to aristocrats, technocrats, or bureaucrats. But he was caught between his belief in free discourse as a model of liberal democracy, and his equally powerful belief that “the canons of induction lead to proven knowledge” (37). Mill never resolved this tension between lay decision-making and scientific truth-finding.</p> <p><strong>Pearson and Mach</strong></p> <p>Ernst Mach and Karl Pearson, writes Turner, are “transitional figures” between Comte and Communists theories of science of the 1930s (38). Both oriented science toward “efficiency.” Both were deeply concerned with ideas of consensus.</p> <p>Pearson, in particular, believed in the power of the scientific method to “assure[] consensus without force” (38). But how can general citizens join this consensus? Again, like Comte, Pearson advocated both education and popularization — but only the experience of actually studying a small area of science closely could really inculcate the proper frame of scientific mind (39). If citizens could generally experience this too, it would “produce consensual politics without coercion” (39).</p> <p><strong>Science, Culture, and Politics</strong></p> <p>Do advances in science depend on cultural conditions? Or is science the “prime mover”? Philosophers like Alfred North Whitehead and socioligists like Sorokin and Max Weber saw Western civilization as enabling the growth of science, and not the reverse (40).</p> <p>Early in the century, “efficiency” became the watchword, and scientific and engineering solutions were proposed as ways to resolve social issues. Otto Neurath and others argued that Socialism and the “planned economy” were scientific and efficient, and therefore both practical and desireable (40).</p> <p>John Dewey promoted the experimental method as the best way to solve problems in human affairs, “replacing ‘custom’ and attachment to traditions, such as constitutional traditions” (40-41). But Dewey wanted the scientific spirit in politics, but <em>not</em> scientists themselves (41).</p> <p>Max Weber dismissed the idea of scientists as technocratic replacements for politicians:</p> <blockquote><p>the qualities that make a man an excellent scholar and academic teacher are not the qualities make him a leader … specifically in politics (43).</p></blockquote> <p><strong>The Impact of Marxism</strong></p> <p>Marxism itself was intended to be a scientific account of history and progress. After the Soviet Union began to put a version of Marxism into practice, early theoreticians in the USSR explicitly bound science to society, and argued that science itself was driven by “social formations and historical considerations” (43). For these theorists, “an autonomous realm of pure science was a sham and an ideological construction” (43).</p> <p>Outside of the Soviet Union, “the Left” accepted the idea that science was not neutral — but also that rational, planned societies were the apotheosis of the scientific approach (44). During the Depression, many saw politicians — and democratic capitalism itself — as standing in the way of scientific progress (44).</p> <p><strong>Post-War Science Studies</strong></p> <p>Turner argues that the debate over the role of science in society was transformed after World War II for a variety of reasons:</p> <blockquote><p>The response of physicists to the Bomb, the coming of the Cold War, the betrayal of atomic secrets by scientists, the Oppenheimer case, the Lysenko affair (which finally discredited the Soviet model of science), and the rise of an aggresively anti-Stalinist Left transformed the debate (47).</p></blockquote> <p>The new, post-war world valorized science, but generally removed politics from explicit consideration — and the result was Thomas Kuhn’s seminal work, <a href="http://www.amazon.com/gp/product/0226458121/ref=as_li_ss_tl?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0226458121"><em>The Structure of Scientific Revolutions</em></a><em>.</em></p> "Problems with treating privacy as a property right" https://inpropriapersona.com/articles/problems-with-treating-privacy-as-a-property-right/ Mon, 09 Apr 2012 21:47:34 +0000 7fdfa876da6c5b8424365a1db7c59bb6 <figure id="attachment_5620" style="max-width: 300px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/donshall/4037816384/in/photostream/"><img class="size-medium wp-image-5620" title="Cornwall School House Nº 3 (1830)" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514416596/Cornwall-School_qizyto.jpg" alt="" width="300" height="300" /></a><figcaption class="wp-caption-text">&#8220;Cornwall School House Nº 3 (1830)&#8221; by Flickr user Don Shall. CC BY-NC-ND 2.0.</figcaption></figure> <p>In the twentieth century, the general move in regards to Fourth Amendment jurisprudence — one prong of privacy — has been <em>away </em>from a focus on property, and <em>towards</em> a view that focuses on people instead. (See, e.g., <a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">The Fourth Amendment: from property to people</a>.) This move gave us warrant requirements for wiretaps even when a physical trespass had not occurred, for example, because it protected people’s “reasonable expectations of privacy.” But as I noted in a previous article, an alternative approach to creating an entirely new right would be to extend property rights to cover information or personal data, rather as copyright, patents, trademarks, and other forms of intellectual property extended physical rules into the realm of the intangible.</p> <p>While there are undoubtedly benefits to this, there are limitations as well. Pamela Samuelson, in “<a href="http://people.ischool.berkeley.edu/~pam/papers/privasip_draft.pdf">Privacy As Intellectual Property</a>,” discusses several of them:</p> <p>First, the infrastructure necessary for enabling a privacy market to flourish is not insubstantial, and would likely require government oversight anyway, especially given the disparity between individuals and data companies (1136-37).</p> <p>Second is the problem Samuelson characterizes as “free alienability”: normally, once sold, the buyer can resell a product to a third party. But this is likely to be a problem with privacy, since individuals may well be comfortable selling to one company but not to another. Limiting alienability undermines a core part of a property system. (1137-38, 1145)</p> <p>Third, it is unclear if a property market is really the most efficient way to allocate resources: “What is scarce is information privacy, not personal data,” but Samuelson argues that it is personal data that is being bought and sold. The goal of the market, then, unlike most others, is to <em>limit</em> availability, not increase it. (1138-39) One might counter by re-conceive of the market as one where <em>privacy</em> is what is bought and sold, but I’m not sure this fixes the market issue.</p> <p>Fourth, but relatedly, the market for intellectual property exists because of a bargain: the law grants temporary monopoly rights (patents, copyrights) to encourage creation and to benefit the public as a result. Everyone benefits from the system. Without it, creators may not have sufficient incentive to invest in, for example, research and development in the face of potential free riders who might undercut them without investing themselves. In the case of privacy rights, though, there is no similar incentive: “Property rights are not needed to bring them [personal data] into being, nor to achieve widespread distribution of them.” In short, what incentives does creating property rights in personal data create? (1140-41)</p> "Privacy and the First Amendment: privacy as property?" https://inpropriapersona.com/articles/privacy-and-the-first-amendment-privacy-as-property/ Mon, 09 Apr 2012 19:14:22 +0000 057379369596afec32f3b12f6fbb16f5 <p><a href="https://inpropriapersona.com/privacy-and-the-first-amendment-privacy-as-property/copyright-and-the-first-amendment/" rel="attachment wp-att-5616"><img class="alignright size-medium wp-image-5616" title="Copyright and the First Amendment" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_297/v1514416599/Copyright-and-the-First-Amendment_t0qzuq.jpg" alt="" width="297" height="300" /></a>In <a href="http://www.copyhype.com/2011/11/copyright-and-the-first-amendment-the-unexplored-unbroken-historical-practice/">Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice</a>, Terry Hart does an excellent job of exploring why the First Amendment has never been held to interfere with the enforcement of copyright, including pre-publication injunctive relief. A few quick highlights:</p> <ul> <li>Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent.</li> <li>There were some who noted, at the least, a prior lack of recognition of the <em>potential</em> conflict, as in this Columbia Law Review note from 1913 on “<a href="http://www.jstor.org/stable/1110659">Freedom of the Press and the Injunction</a>.”</li> </ul> <p>The main reason Hart identifies as to why legal thinkers did not consider there to be a conflict?</p> <blockquote><p>The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.</p></blockquote> <p>Hart points out that the earliest (1839) case — <a href="http://books.google.com/books?id=zn5IAAAAYAAJ&amp;pg=PA24&amp;lpg=PA24&amp;dq=Brandreth+v.+Lance&amp;source=bl&amp;ots=ETOVX1fI1h&amp;sig=fA3cVi1tw6_alJIuFIe6Ri8_m_s&amp;hl=en&amp;ei=doLeTuKiEYqFgweK0_2MBw&amp;sa=X&amp;oi=book_result&amp;ct=result&amp;resnum=3&amp;ved=0CDoQ6AEwAg#v=onepage&amp;q=Brandreth%20v.%20Lance&amp;f=false"><em>Brandreth v. Lance</em></a><em>, </em>from New York<em> — </em>ruling on the constitutional grounds of free speech noted the following when denying an injunction for potential libel:</p> <blockquote><p>There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright.</p></blockquote> <p><em>(Note: there is another key ground on which judges — including the Supreme Court — have said that injunctions can be granted in regards to copyright: the fact that copyright is granted in the Constitution itself. See </em><a href="http://scholar.google.com/scholar_case?case=17571244799664973711&amp;#%5B15%5D">New York Times v. U.S.</a>, from 1971.)</p> "The rule of law in Michigan" https://inpropriapersona.com/news/2012/the-rule-of-law-in-michigan/ Sat, 07 Apr 2012 18:25:11 +0000 9e58d5ebf7b9937cf830c11ae34b772a <figure style="max-width: 320px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/lincolnblues/2090796919/in/photostream/"><img title="Michigan House of Representatives Floor" src="http://farm3.staticflickr.com/2392/2090796919_85bd7d57d8_n.jpg" alt="" width="320" height="213" /></a><figcaption class="wp-caption-text">&#8220;Michigan House of Representatives Floor&#8221; by Flickr user &#8220;lincolnblues.&#8221; CC BY-NC-ND 2.0.</figcaption></figure> <p>An MSNBC report by liberal journalist Rachel Maddow strongly condemned the current Republican leadership in Michigan <a href="http://web.archive.org/web/20120724224222/http://maddowblog.msnbc.msn.com/_news/2012/04/06/11060678-about-that-michigan-story">for not following the state constitution</a>. Instead, Republicans have passed bills subject to “immediate effect” <em>without</em> the required constitutionally required two-thirds majority vote in both houses of the legislature.</p> <p>After more than a year of this, House Democrats have filed for a preliminary injunction and a writ of mandamus in state court, demanding that House Republicans actually count votes (that would be a mandamus order) and demanding an injunction against laws passed for “immediate effect” <em>without</em> the required two-third majority vote. They won. (Remember, this is just <em>preliminary</em>, and the Republicans have already <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/house_appeal.pdf">appealed</a> even this. Also note that I am not licensed to practice law in Michigan. Finally, one of the laws at immediate issue deals with graduate students unions — and I am an uneasy member of the graduate student union here in San Diego.)</p> <p>Should a state legislative body be insulated from judicial scrutiny of its “internal” processes? Is ignoring actual vote counts, and simply declaring something to have “immediate effect” sufficient to make it so in the state of Michigan? What is the relationship between the three branches of government?</p> <p><strong>The Role of the Courts in the Legislative Process</strong></p> <p>The extensive <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/house_appeal.pdf">Republican appeal</a> (filed by the State Attorney General’s Office, an interesting intervention of the executive branch in the matter) argues that state courts have no business interfering with the legislature at all: “The circuit court’s enjoining of the immediate effect given Public Acts 45 and 53 of 2012 is unprecedented, and was an unprincipled decision barred by separation of powers principles and court precedents.”</p> <p>Although I am not a Michigan lawyer, I find it hard to believe that the separation of powers principle in Michigan truly prohibits a court from ruling on legislative actions. In fact, in less than five minutes of searching, I found court precedent in favor of my belief — on the Michigan Legislature’s own website, in their own description of Article IV § 27, in case called <a href="http://scholar.google.com/scholar_case?case=5722315591987399107"><em>Frey v. Department of Management and Budget</em></a><em>.</em></p> <p>First, what does <a href="http://www.legislature.mi.gov/(S(z5xs2555swfewg552h2fbknf))/mileg.aspx?page=getObject&amp;objectName=mcl-Article-IV-27">Article IV § 27</a> of the Michigan Constitution say?</p> <blockquote><p>No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.</p></blockquote> <p><strong><em>Frey v. Department of Management and Budget</em></strong></p> <p>In 1987, the Supreme Court of Michigan ruled that two-thirds rule of Article IV § 27 must be followed, and then proceeded to delay a law until ninety days had passed (note that this dealt with an <em>initiative</em> combined with legislative action, which is arguably different):</p> <blockquote><p>We hold that art 4, § 27, does apply to initiated laws enacted by the Legislature. Therefore, since the initiative was not given immediate effect by a two-thirds vote of each house of the Legislature, 1987 PA 59 may not go into effect until ninety days after the end of the session at which it was enacted. We affirm the decision of the Court of Appeals. <a href="http://scholar.google.com/scholar_case?case=5722315591987399107"><em>Frey v. Department of Management and Budget</em></a>, 429 Mich 315; 414 NW2d 873 (1987).</p></blockquote> <p>The <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/house_appeal.pdf">Republican appeal</a> dismisses all of <em>Frey</em> as essentially meaningless to the current fact pattern, focusing on its relevance <em>only</em> to the issue of referendums, and ignoring entirely the core argument above (presumably deciding the referendum language was binding, but the immediate effect language was merely dicta).</p> <p>I find it difficult to ignore the language in <em>Frey</em> that a “two-thirds vote of each house” is required. <em>Frey</em> assumes the power of the Michigan courts to rule on legislative issues like two-third majorities, and <em>Frey</em> affirms the power of the courts to say when a law goes into effect. The Republican appeal fails to deal effectively with <em>Frey</em>.</p> <p><strong>Other Cases</strong></p> <p>Whatever the detailed reasoning of other cases cited by the <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/democratic_response.pdf">Democratic response</a> to the Republican appeal, it is at least clear that the circuit judge’s order is <em>not</em> “unprecedented.”</p> <p>Thus, for example, <a href="http://scholar.google.com/scholar_case?case=3548885002713282970"><em>Michigan Taxpayers United, Inc. v. Governor</em></a>, 600 NW2d 401 (1999), where the Court of Appeals of Michigan upheld as “proper” the state legislature’s granting “immediate effect” the law in that case — but affirmed the right of the courts to rule on the properness of legislative process:</p> <blockquote><p>Whether the Legislature properly gave immediate effect to the bill is a question of law that we review de novo. (403)</p></blockquote> <p><strong>The Role of the Courts and the Rule of Law</strong></p> <p><a href="http://scholar.google.com/scholar_case?case=9834052745083343188"><em>Marbury v. Madison</em></a>, 5 U.S. 137 (1803) succinctly stated the role of the judiciary in the American system: “It is emphatically the province and duty of the judicial department to say what the law is.”</p> <p>Without the check of the judiciary, there would be no true rule of law. The judicial branch exists because the legislative and executive branches — regardless of their own agreement, and regardless of the size of their majorities — must be checked. The solution to a court ruling on the constitutionality of an act is to change the constitution (but it’s hard to do that, unless you’re running an initiative in California).</p> <p>Arguing the merits of their process before the courts is proper. Telling the courts to “leave us alone,” and accusing a judge of acting “improperly” for interfering with the legislative process — that’s not the rule of law. Violating your own state constitution just because you’re the Republican majority is also not the “republican form of government” guaranteed under Article IV of the United States Constitution, either.</p> <p><strong>The Elephant in the Room: The Federal Guarantee Clause, Due Process, and Equal Protection</strong></p> <p>“The United States shall guarantee to every state in this union a republican form of government,” reads<a href="http://www.law.cornell.edu/constitution/articleiv"> Article IV, Section Four</a>. The Supreme Court has held that this guarantee is given to the United States Congress, who affirms a state’s “republican form of government” every time it seats new members from that state. (Note that a “republican form of government” means a representative democracy, <em>not</em> rule by the Republican Party.)</p> <p>More powerful in practice than Article IV, the <a href="http://www.law.cornell.edu/constitution/amendmentxiv">Fourteenth Amendment</a> prohibits the denial of individual rights by state governments. If the federal government were to be involved in the Michigan situation, it would likely involve arguments that House Republicans have denied “due process” and “equal protection” of the law to the citizens of Michigan.</p> <p>Additionally, the <a href="http://en.wikipedia.org/wiki/Voting_Rights_Act">Voting Rights Act</a> of 1965 — which considers parts of Michigan to be subject to extra scrutiny due to a history of civil rights violations — would give additional weight to federal intervention in Michigan.</p> <p>The <a href="http://www.justice.gov/crt/about/vot/intro/intro_b.php">Justice Department</a> has the power to investigate under the Voting Rights Act. Citizens may also sue in federal court to enforce the Act. So far, this issue seems confined to Michigan state courts — but it may not stay that way.</p> <p><strong>Conclusions</strong></p> <p>The Republican appeal — written by the state’s Attorney General — argues that the court’s preliminary injunction ought to be reversed as an “unreasonable and unprincipled decision barred by separation of powers principles and court precedents.”</p> <p>I argue, instead, that there is nothing “unreasonable” or “unprincipled” in the lower court’s decision, even if a more complete analysis of the law supports the actions of House Republicans.</p> <p>Each branch of government has its purpose in the American system, and it is, as <em>Marbury</em> stated so long ago, the purpose of the judiciary to rule on law. Thus, a judge doing so is <em>necessary</em> to maintain the rule of law and a republican form of government — it is certainly not “unprincipled.”</p> <p>Legislatures should not be — even if they sometimes are — insulated from judicial scrutiny. Ignoring one’s own constitution is illegal and morally wrong. A judge ordering a preliminary injunction while a trial investigates that possibility is both reasonable and principled. And an order of mandamus essentially requiring legislators to <em>follow their own constitution</em> does not appear to be much of a burden — unless that isn’t already happening.</p> <p><strong>More Resources</strong></p> <p>Some important primary source documents:</p> <ul> <li>The <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/democratic_motion_and_brief.pdf">Democratic request</a> for an injunction and writ</li> <li>The <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/temporary_injunction.pdf">preliminary court order</a></li> <li>The <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/house_appeal.pdf">Republican appeal</a></li> <li>The <a href="http://msnbcmedia.msn.com/i/MSNBC/sections/tvnews/msnbc%20tv/maddow/pdfs/democratic_response.pdf">Democratic response</a></li> </ul> "Contract law in the antebellum 19th century" https://inpropriapersona.com/articles/contract-law-in-the-antebellum-19th-century/ Fri, 23 Mar 2012 22:52:09 +0000 dac6b23eb5fed4b03db3710819c2ac64 <p><img class="alignright size-medium wp-image-5520" title="Fletcher v. Peck" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514416640/Fletcher-v-Peck-_ifmcxs.jpg" alt="" width="300" height="300" />The so-called “contracts clause” appears in Article I, section 10, clause 1 of the <a href="http://en.wikipedia.org/wiki/United_States_Constitution">United States Constitution</a>:</p> <blockquote><p>No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.</p></blockquote> <p>In <a href="http://www.amazon.com/Law-America-History-Library-Chronicles/dp/0812972856"><em>Law in America: A Short History</em></a>, Lawrence Friedman explains that “the clause was probably intended to make it impossible for states to interfere with the rights of creditors [or] to go too far in helping out debtors” (53). Legislatures had been known to pass laws relieving influential persons of debt, for example, a practice that was both unfair to those less influential and potentially ruinous to the overall economic system:</p> <blockquote><p>There was a shortage of hard money in the country, no real banking system in the modern sense; yet the whole structure of enterprise floated on a sea of credit. Businesses sold on credit and bought on credit. … When one link in the chain began to weaken, there was trouble up and down the line. (53)</p></blockquote> <p>Aside from the appearance of this clause in 1787, the law of contracts before the nineteenth century was minimal, especially as compared to it’s more developed cousin, the law of property. But the nineteenth century — which Friedman called “the golden age of contract law” — saw contract law in the United States become the pre-eminent form of private law.</p> <p>The common law before the nineteenth century required contracts to be fair and reasonable: a “sound price warrants a sound commodity.” But by mid-century, William Wetmore Story’s famous treatise on contracts recognized that this basic understanding had radically altered. Contracts now required only “mutual assent of the parties” and “<a href="http://en.wikipedia.org/wiki/Consideration">valuable consideration</a>.” Fairness — roughly defined as similar levels of benefit for each party — was now irrelevant. <a href="http://en.wikipedia.org/wiki/Kermit_L._Hall">Kermit Hall</a>‘s <a href="http://www.amazon.com/American-Legal-History-Cases-Materials/dp/0195162250%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0195162250"><em>American Legal History: Cases and Materials</em></a> puts it this way:</p> <blockquote><p>the law of the nineteenth century recognized and supported the belief that unfair bargains were necessary for the commercial and industrial development of the day.</p></blockquote> <p>Martin Horwitz, in <a href="http://books.google.com/books?id=2zbae5lDvr0C&amp;pg=PA160&amp;lpg=PA160"><em>The Transformation of American Law, 1780-1860</em></a><em>,</em> adds that</p> <blockquote><p>judges and jurists finally reject[ed] the longstanding belief that the justification of contractual obligation is derived from the inherent justice or fairness of the exchange. In its place, they asserted for the first time that the source of the obligation of contract is the convergence of the wills of the contracting parties.</p></blockquote> <p>Put another way, “the law of the nineteenth century recognized and supported the belief that unfair bargains were necessary for the commercial and industrial development of the day” (Hall 197).</p> <p><strong><em>Seixas and Seixas v. Woods</em></strong></p> <p>The shift to a <em>caveat emptor</em> model of contract — distinct from the earlier common law and also from then-current European civil law — emerged early in the newly formed United States.</p> <p>In 1804, a court in New York rejected the idea of an “implied warranty” absent intentional fraud, and required that, “without a warrant by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects.” Judge Kent argued that this was unlike civil law, but was indeed “well and elegantly vindicated … as most happily reconciling the claims of convenience with the duties of good faith.”</p> <p>The New York court argued — as courts often did (and do) that this articulation was long-standing, and nothing new at all — even though Martin Horwitz explains that this was <em>not</em> the case in the seventeenth country at all:</p> <blockquote><p>[A]s late as 1792 Blackstone’s successor in the Vinerian Chair at Oxford, Richard Wooddeson, proclaimed the “sound price” doctrine to be good law (167).</p></blockquote> <p>Nonetheless, the trend away from the “sound price” interpretation of contracts continued.</p> <p><strong><em>McFarland v. Newman</em></strong></p> <p>A Pennsylvania case from 1839, <em>McFarland v. Newman</em>, Watts (Pa.) 55, argued that any adoption of the “civil law maxim … that a sound article is warranted a sound price” by the common law was a mistake:</p> <blockquote><p>The [common-law] judges, in pursuit of a phantom in the guise of a principle of impracticable policy and questionable morality, broke away from the common law.”</p></blockquote> <p>Instead, Judge Gibson argues, the “maxim caveat emptor, disposes of all,” unless there is “willful misrepresentation.” Gibson goes on to explain the principle:</p> <blockquote><p>the naked averment of a fact is neither a warranty itself, nor evidence of it. … [I]t certainly may be taken into consideration … but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation.”</p></blockquote> <p><strong><em>Seymour v. Delancey, et al.</em></strong></p> <p>Back in New York, the highest court of appeals rejected a lower-court opinion finding that equity forbid ordering specific performance of contracts with very unequal levels of consideration. The lower-court judge had argued that there was a</p> <blockquote><p>“very great weight of authority against enforcing a contract, where the consideration is so inadequate as to render it a hard bargain, and an unequal and an unreasonable bargain.”</p></blockquote> <p>On the contrary, wrote the higher-court majority in <em>Seymour v. Delancey, et al.</em>, 3 Cow. (N.Y.) 445 (1824), “<em>mere inequality</em> in value” was “not sufficient … in withholding a decree for specific performance.” As in Pennsylvania, contracts had to be enforced, “<em>where thee is no fraud, misrepresentation, imposition, or concealment of facts.</em>”</p> <p>Kermit Hall suggests that this New York opinion “anticipates a modern marketplace” where “purchases are constantly made upon speculation” (202). The court prefers to support this new marketplace of “risky investments,” even “at the expense of those who might enter into blatantly unfair bargains out of ignorance” (202).</p> <p><strong><em>Fletcher v. Peck</em></strong></p> <p>As I noted above, unlike most other areas of non-criminal law, contracts have a constitutional component. As a result, state legislatures cannot “impair” existing contracts.</p> <p>The implications of this clause were felt early in United States history, when the 1795 Georgia legislature sold land for less than market value — benefitting many legislators and other government officials. The 1796 Georgia legislature then attempted to rescind the sale because of the blatant corruption involved, but in <em>Fletcher v. Peck</em>, 10 U.S. 87 (1810), the Supreme Court held this rescission by the legislature unconstitutional:</p> <blockquote><p>The state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.</p></blockquote> <p>Justice Marshall added that, if this were not the case, then “[a]ll titles would be insecure, and the intercourse between man and man would be very seriously obstructed.”</p> <p>(The issue was eventually handled by an act of Congress in 1814 that indemnified purchasers with a buyout, instead of rescinding the contract of sale.)</p> <p><strong>Antebellum Conclusions</strong></p> <p>If it’s fair to say, as Kermit Hall does, that before the nineteenth century “a legally enforceable contract had to be fair,” then it’s also fair to say that <em>caveat emptor</em> — ”let the buyer beware” — triumphed early on the 1900s:</p> <blockquote><p>[C]ontract law generally favored sellers over buyers and employers over laborers and served as an instrument that aided the industrial and commercial entrepreneurs of the nineteenth century. This led to the “triumph of contract” over property, tort, and equity, as the law came “to ratify those forms of inequality that the market system produces.” (196-97)</p></blockquote> <p>The Civil War did little to change contract law, even if contracts to own persons were no longer enforceable. (Note that the Contracts Clause <em>does not apply</em> to the federal government, so there was no Contracts Clause problem with Abraham Lincoln’s Emancipation Proclamation.)</p> <p>Modern contract law has added some complexity to the doctrine of <em>caveat emptor.</em> Many states have added statutory provisions that create “implied warrantees of merchantability,” for example, and the United Kingdom has moved away from it for consumer purchases. Still, in general American courts have not strayed too far from the rule (except Louisiana, which continues to follow the civil-law doctrine of “redhibition”: “a sound price warrants a sound commodity”).</p> "Freedom to contract at the end of the nineteenth century" https://inpropriapersona.com/articles/freedom-to-contract-at-the-end-of-the-nineteenth-century/ Fri, 23 Mar 2012 22:44:48 +0000 ea6b804bb1cd8880c359824c01a6e1e5 <p><img class="alignright size-medium wp-image-5569" title="Lochner" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_293/v1514416619/Lochner_ulbyta.jpg" alt="" width="293" height="300" />In <a href="http://www.amazon.com/American-Legal-History-Cases-Materials/dp/0195162250%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0195162250">Kermit Hall’s words</a>, the nineteenth century saw the “triumph of contract” over property, tort, and equity, as the law came “to ratify those forms of inequality that the market system produces.” (196-97) The early twentieth century continued this &#8212; at least until the Great Depression and Franklin Roosevelt’s New Deal forced the court to reconsider.</p> <p><strong><em>Allgeyer v. Louisiana</em></strong></p> <p>As I <a href="https://inpropriapersona.com/2012/03/post-war-contract-law-in-the-nineteenth-century/">discussed earlier</a>, <em>Allgeyer v. Lousiana</em>, 165 U.S. 578 (1897) expressed the unanimous opinion of the Supreme Court that freedom of contract was a fundamental right protected by the due process clause of the Fourteenth Amendment. While this case itself was applied to limitations of out-of-state businesses operating in Louisiana, its valorization of the “liberty of contract” was extended to employment regulations as well (Hall 398).</p> <p><strong><em>Holden v. Hardy</em></strong></p> <p>Still, despite this valorization of contract as liberty the year before, hints emerged of limitations on contract that would emerge more fully in the twentieth century. In <em>Holden v. Hardy</em>, 169 U.S. 366 (1898), Justice Henry Billings Brown “accepted the idea that employer and employee do not stand on an equal bargaining footing” (Hall 399):</p> <blockquote><p>the proprietors of these establishments and their operatives do not stand upon an equality, and … their interests are, to a certain extent, conflicting. … In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them.</p></blockquote> <p>As regulations limiting children’s working hours in factories are a valid exercise of a state’s police power &#8212; which also includes <a href="https://inpropriapersona.com/2010/03/smallpox-inoculation-and-quarantine-in-colonial-america/">enforced vaccination, quarantine</a>, and other protections of the public’s general welfare &#8212; so too is an act that seeks to protect workers in a particularly dangerous occupation (mining).</p> <p><strong><em>Lochner v. New York</em></strong></p> <p>At the turn of the century, the “triumph of contract” was effectively constitutionalized: <a href="http://en.wikipedia.org/wiki/Lochner_v._New_York"><em>Lochner v. New York</em></a>, 198 U.S. 45 (1905) held that the “liberty of contract” was a fundamental right protected by the <a href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution">Fourteenth Amendment</a>. <em>Lochner</em> invalidated legislation limiting the workweek to 60 hours on the theory that</p> <blockquote><p>the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.</p></blockquote> <p>The <em>Lochner</em> Court construed the law as an absolute interference “with the right of contract between the employer and employees,” then declared that “the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” The Fourteenth Amendment’s <a href="http://en.wikipedia.org/wiki/Due_process">Due Process Clause</a>–originally intended to overturn <a href="http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford"><em>Dred Scott</em></a> and to prohibit so-called “<a href="http://en.wikipedia.org/wiki/Black_Codes_(United_States)">Black Codes</a>” &#8212; prohibits states from depriving any person of life, liberty, or property without due process of law. To the <em>Lochner</em> Court, the right to buy and sell labor through contract was a “liberty of the individual,” and was thus constitutionally protected.</p> <p><strong>The end of <em>Lochner</em></strong></p> <p><em>Lochner</em> was finally challenged successfully during the Depression, in <a href="http://supreme.justia.com/cases/federal/us/300/379/"><em>West Coast Hotel Co. v. Parrish</em></a>, 300 U.S. 379 (1937), which finally allowed for a general minimum wage in Washington State–and thus overturned the maximalist version of freedom of contract.</p> "Post-war contract law in the nineteenth century" https://inpropriapersona.com/articles/post-war-contract-law-in-the-nineteenth-century/ Fri, 23 Mar 2012 21:34:52 +0000 3cb1cd6beee618447ea4959bf3a09de9 <p><a href="https://inpropriapersona.com/post-war-contract-law-in-the-nineteenth-century/freedmans_bureau/" rel="attachment wp-att-5610"><img class="alignright size-medium wp-image-5610" title="Freedman's Bureau" src="http://res.cloudinary.com/krisnelson/image/upload/h_236,w_300/v1514416602/Freedmans_bureau_eybkj8.jpg" alt="" width="300" height="236" /></a>In many respects, the so-called “<a href="http://en.wikipedia.org/wiki/Black_Codes_(United_States)">black codes</a>” put in place in the South immediately after the Civil War exemplify the potential extremes of nineteenth-century contract law. Although these laws only lasted for a few years before the Republican Congress — dominated by Northerners after the secession of the South — stepped in and forced the South to accept new laws and to repeal the black codes. Additionally, the Civil Rights Act of 1866, along with the Fourteenth and Fifteenth Amendments, effectively overrode the black codes and their discriminatory practices (see, for example, <em>In re Turner</em>), although some aspects would reappear later in the century, as part of “Jim Crow” and segregation.</p> <p>The black codes often required “persons of color” to sign year-long labor contracts, with wages payable at the end of the year, and punished “vagrants” found in public with mandatory labor. Newly freed slaves were often prohibited from working in many occupations and from acquiring land. But even when not <em>forced</em> by law or force to sign such contracts, many African-Americans — with limited options — signed such contracts voluntarily.</p> <p>Despite their unfair terms and limited voluntariness, Southern courts enforced these contracts. (It was, in truth, extremely difficult for African-Americans to challenge their terms, since the codes also limited access to the courts by former slaves.)</p> <p>The Freedmen’s Bureau, established by Congress in 1865 as part of the Department of War, tried to mitigate the black codes. It attempted to “provide food, shelter, education, and legal protection to the recently emancipated slaves” (Hall 266), and even heard cases where the state judicial system was inadequate or lacked due process (266). According to <a href="http://www.jstor.org/discover/10.2307/40582592">Paul Cymbala</a>, the Bureau also supervised contracts — although that might well have reinforced the power of “contract slavery” by encouraging freedmen to voluntarily sign such contracts.</p> <p>Regardless of the racial basis of such contracts, the law continued to pretend, at least into the twentieth century, that labor contracts were the result of free bargaining between equal parties. In <em>Allegeyer v. Louisiana</em>, 165 U.S. 578 (1897), the Supreme Court explained that the Fourteenth Amendment guaranteed “liberty of contract” :</p> <blockquote><p>the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.</p></blockquote> <p>Thus, the Fourteenth Amendment had shifted from a device to free enslaved labor, to one that consigned laborers to effective enslavement and terrible working conditions — provided there was a contract to that effect.</p> "Reforming government regulations: Stephen Breyer’s technocratic solutions" https://inpropriapersona.com/articles/reforming-government-regulations-stephen-breyers-technocratic-solutions/ Wed, 14 Mar 2012 17:57:03 +0000 ff4291749e92daddfb660449d53d4ecc <p><a href="https://inpropriapersona.com/reforming-government-regulations-stephen-breyers-technocratic-solutions/pp1/" rel="attachment wp-att-5630"><img class="alignright size-medium wp-image-5630" title="Breaking the Vicious Circle" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_191/v1514416588/PP1_b28gvt.jpg" alt="" width="191" height="300" /></a>In <a href="http://www.amazon.com/Breaking-Vicious-Circle-Effective-Regulation/dp/0674081153"><em>Breaking the Vicious Circle</em></a>, Justice Stephen Breyer tackles the problem of regulation and risk in the American context:</p> <blockquote><p>Justice Breyer identifies several systemic problems that plague the regulatory process in the United States. He discusses how public (mis)perceptions, congressional (over)reaction, and technical (un)certainty create a “vicious circle” that increasingly undermines the legitimacy of the regulatory process.  —  <a href="http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1135&amp;context=facschol">Eric J. Gouvin, A Square Peg In A Vicious Circle: Stephen Breyer’s Optimistic Prescription For The Regulatory Mess</a></p></blockquote> <p>Breyer complains that the current approach to risk regulation is irrational. Because the <em>perception</em> of risk drives voters, and therefore public officials, to focus on specific potential harms, there is little appropriate “risk-benefit” assessment employed.</p> <p>For example, regulators may seek to clean up <em>every</em> aspect of a potential agent — like asbestos — while neglecting to consider whether the benefit of complete cleanup is worth the risk, either monetary or physical:</p> <blockquote><p>For example, “cleaning up” asbestos in public buildings causes asbestos fibers that would have remained harmlessly in place to become airborne, increasing significantly the chance of those fibers lodging in workers’ lungs and creating medical problems. (Gouvin, n. 11, 475)</p></blockquote> <p>Breyer puts together a table showing that some regulations with costs of $10 million to $5.7 trillion per life saved. In short, the “marginal cost of extra health may daunt all but the most zealous” (Stephen F. Williams, “<a href="http://www.jstor.org/discover/10.2307/1289890">Risk Regulations and its Hazards</a>,” 1499).</p> <p>1995′s approach is also uncoordinated. Breyer points out that regulations on space heaters cost $100,000 per life saved, while bans on DES in cattle feed cost roughly $125 million “per statistical life” (22). <a href="http://www.jstor.org/stable/1289890?seq=1">Stephen Williams explains</a> that Breyer sees this as a “wasteful allocation of resources” that over invests in certain areas and neglects others (1498). In other words, with limited resources available, such uncoordinated and disconnected spending fails to save the maximum number of possible lives per available dollar — and little has changed in 2012.</p> <p>Regulations also overlap in unanticipated (but likely not unanticipatable) ways:</p> <blockquote><p>Proposed rules concerning disposal of sewer sludge, designed to save one statistical life every five years, would encourage waste incineration likely to cause two statistical deaths annually (22).</p></blockquote> <p>In other words, disparate agencies assessing and regulating risk tend to focus on their own peculiar zones of risk, and fail to appreciate the big picture of interacting regulations.</p> <p>In summary, Breyer categorizes the various regulatory failures like those described above as (1) tunnel vision, (2) random agenda selection, and (3) inconsistency.</p> <p><strong>The Source of the Problem</strong></p> <p>Irrational regulations emerge from a triumvirate of sources: (1) inaccurate public perceptions; (2) congressional action and reaction, instead of planning; and (3) uncertainties in the regulatory process.</p> <p>First, even if lay people do think rationally about possible risks — and Breyer thinks they tend to — they “are unlikely to acquire a full grasp of the relevant facts” (Williams, 1500). The lay public typically gets its information from press sources, and the press focuses on the dramatic. A focus on toxic-waste dumps, for example, along with a presentation of higher-than-average cancer rates in nearby areas, may conflate <em>causation</em> with <em>correlation</em> and lead to an irrational (if viewed from a societal perspective, anyway) demand to regulate toxic-waste dumps to reduce the incidence of cancer.</p> <p>Second, Congress tends to be reactive to what they perceive as voter’s <em>current</em> demands — since these demands are what get them re-elected. (The House, which its short, 2-year election cycle, is even more prone to this than the Senate, which grants 6 years between elections). And with changing Congressional representation, agencies may receive vastly different, and potentially incompatible, regulatory missions.</p> <p>Third, the regulatory process itself is uncertain, because the science of risk is uncertain. It is essentially impossible to set up a double-blind, controlled study of the effects of small amounts of benzene on humans over a 60-year period. Instead, researchers use short-term, high-dose animal studies and then extrapolate to the long-term effects on humans.</p> <p>But rats are not humans, and high-doses of chemicals do not necessarily cause the same effects as low-doses. As Breyer observes, there is “no consistent scientific rational for assuming a linear relation between dose and response” (44).</p> <p>Statistical and epidemiological studies can get around these particular problems, but introduce their own potential issues — especially around the problems of distinguishing between causation and correlation. Also — <em>impossible</em> to isolate all variable. Variables are never truly independent. Best to look for lots of study — meta-studies — an rather inductive science.</p> <p><strong>Breyer’s Solution</strong></p> <p>Breyer has no real solution to the technical problems of the science, other than to let technically trained people — those who understand the problems with the science — make the decisions. He does have many suggestions about how to structure a bureaucracy/technocracy that can better weigh, assess, and decide on policies based on the data that <em>can</em> be generated with today’s science.</p> <p>His overall solution is quintessentially technocratic, and very much reminiscent of a more European model of regulatory authority. He wants, <a href="http://ssrn.com/abstract=1972218">in the words of Todd Zubler</a>, “an elite and insulated cadre of civil servants” (244) — experts in both science and government — to “unite[] political power with wisdom.” (Breyer, x) This Socratic unity, as opposed to the voting booth, is what creates trust; it “must be central in any effort to create the politics of trust” (81).</p> <p>More specifically, Zubler says,</p> <blockquote><p>Breyer wants to establish a new and prestigious career path by which civil servants could develop regulatory expertise across a number of different governmental agencies. These experienced bureaucrats could then form a small, centralized administrative group that could coordinate and rationalize the nation’s regulatory agenda. Such an organization, according to Breyer, would combine the expertise, broad vision, political insulation, and interagency jurisdiction which are all so lacking in the current system. (244)</p></blockquote> <p><strong>Issues</strong></p> <p>Zubler worries that Breyer’s new centralized bureaucracy goes too far. Other forces can also protect people from risk, including the market and the judicial system:</p> <blockquote><p>But … regulation is only needed when market and common law mechanisms fail. To push bureaucratic regulation beyond those situations threatens individual liberty and freedom. (247)</p></blockquote> <p>Put differently, Breyer’s European-style, top-down, technocratic system brings efficiency and rationality to bear of the problem of risk. But — interestingly for a lawyer and judge — it neglects the bottom-up tools that are core to the American approach, such as tort law and free-market competition. He proposes a grand, top-down restructuring that does nothing to adjust and improve an individual’s ability to assess and manage risk, such as improved labeling and consumer information and better access to the courts.</p> <p><strong>The Judiciary</strong></p> <p>What would be the role of the judiciary in an America where technocratic elites are making regulatory decisions?</p> <p>Medical device manufacturers have already argued — and won — the case that FDA-approval of medical devices preempts tort lawsuits (<a href="http://en.wikipedia.org/wiki/Riegel_v._Medtronic,_Inc.">Riegel v. Medtronic</a>, 552 U.S. 312 (2008)). On the other hand, drug manufacturers lost their bid for preemption in <a href="http://en.wikipedia.org/wiki/Wyeth_v._Levine">Wyeth v. Levine</a>, 555 U.S. 555 (2009).</p> <p>Would — or should — Breyer’s approach preempt lawsuits? For maximum efficiency, it should — but the American system is not about efficiency at all. It’s about checking the power of any one part of government. The judiciary’s role since <em>Marbury v. Madison</em>, at least, is to check the rest of government. But while eliminating this check would fundamentally alter the balance of power, <em>not</em> doing so would severely undermine many gains in efficiency.</p> <p>Interestingly, Breyer’s unelected, technocratic elite are reminiscent of the federal judiciary itself. It too consists of specialists (in law) who are unelected (they appointed by the President) and unaccountable (except via impeachment, federal judges serve for life). But the judiciary is considered the third branch of American government, and these special attributes serve as its means of checking and balancing the executive and legislative branches. Extending these attributes to Breyer’s new cadre might well create the equivalent of a <em>fourth branch</em> — and would anything less prove effective enough to be worth the effort?</p> <p><strong>Liberal or Conservative?</strong></p> <p>Finally, I wonder how to characterize Breyer’s proposal: is it liberal, conservative, or something else? In many respects, his solution is extremely conservative: it presumes a distrust of the public that is reminiscent of conservative distrust of poor voters, for example. But it invokes a liberal (in the modern sense), governmental solution to the problem, one that is opposed to contemporary Republican views that <a href="http://en.wikiquote.org/wiki/Ronald_Reagan">government is the problem, not the solution</a>. On the other hand, a more efficient regulatory system could eliminate government waste, reform tort law, and free business from burdensome, pointless regulations. A more efficient government is a cheaper government that would require fewer taxes — a popular conservative goal.</p> <p>Depending on the details, then, Breyer’s reforms <em>could</em> appeal to both Democrats and Republicans — but certainly <em>not</em> to modern libertarians, or to anyone opposed to government <em>on principle.</em> It is, in a sense, anti-individualist, and deeply dismissive of old liberal notions of market-based corrections and individual responsibility.</p> <p><strong>Conclusions</strong></p> <p>Still, gains in efficiency and effectiveness would not require such radical changes. Improved cross-agency coordination and more inclusion of scientific experts — perhaps with a more limited version of Breyer’s technocratic bureau — might provide major gains without requiring fundamental readjustments of the American system.</p> <p>My short opinion? Breyer effectively identified major systemic problems with the American regulatory system, but his full proposed solution is simply impractical in the United States (perhaps especially in 2012) — but more limited versions would still provide useful reforms. But any of this would <em>require</em> greater trust and respect in science — and a philosophical uniting of virtue and wisdom by scientists is not enough to overcome the current anti-intellectual and anti-science beliefs prevalent today in the American Right:</p> <blockquote><p>“<a href="http://news.yahoo.com/blogs/ticket/rick-santorum-dangers-carbon-dioxide-tell-plant-152230291.html">The dangers of carbon dioxide? Tell that to a plant, how dangerous carbon dioxide is.</a>”  —  2012 GOP presidential candidate Rick Santorum.</p></blockquote> "Is everything old new again? Learning from the history of technology" https://inpropriapersona.com/articles/is-everything-old-new-again-learning-from-the-history-of-technology/ Thu, 08 Mar 2012 04:04:51 +0000 cab151c32903d7391f84d530d0cc991f <p><img class="alignright size-medium wp-image-5586" title="The Master Switch by Tim Wu" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_202/v1514416614/tim-wu-master-switch_gw7g7u.jpg" alt="" width="202" height="300" />Peter Decherney, Nathan Ensmenger, and Christopher S. Yoo recently published an article, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009492">Are Those Who Ignore History Doomed to Repeat it?</a>, on <a href="http://en.wikipedia.org/wiki/Tim_Wu">Tim Wu</a>‘s book, <a href="http://www.amazon.com/Master-Switch-Information-Empires-Borzoi/dp/0307269930">The Master Switch: The Rise and Fall of Information Empires</a>. Wu argues that communications technologies follow “the Cycle,” beginning as open systems, only to be closed by corporate moguls — and then re-opening again as the Cycle starts anew after a new innovation emerges. Decherney, Ensmenger, and Yoo do not completely reject Wu’s thesis, but they do argue that Wu’s focus on individual actors neglects the complexities of other market players (advertisers, for example), government agencies, and other supply- and demand-side actors.</p> <p>Wu’s thesis rests on the powerful idea that we can improve our future by learning from the past, an approach that is core to my own historical focus on the telegraph in the nineteenth century — and the lessons that it can teach us about current and future technologies like the Internet.</p> <p>Wu’s vision of influential corporate moguls whose visionary approaches unify and then close communications networks is seductive in the same way that our vision of a Romantic author is (Americans especially seem to cling to this idealistic notion). For example, it’s tempting, but equally misleading, to view <em>Star Wars</em> as the work of <a href="http://en.wikipedia.org/wiki/George_Lucas">George Lucas</a>, forgetting — or eliding — the number of other figures who played major or minor roles in its creation and production. The same is true of any technological development.</p> <p>Decheney, et al. also make the convincing argument that, even if we focus only on larger-than-life individuals (<a href="http://en.wikipedia.org/wiki/Alexander_Graham_Bell">Alexander Graham Bell</a>, former AT&amp;T President <a href="http://en.wikipedia.org/wiki/Theodore_Newton_Vail">Theodore Vail</a>, financier <a href="http://en.wikipedia.org/wiki/J._P._Morgan">J.P. Morgan</a>, and so on), we have to take account of visionary individuals who have pushed for openness instead: in the Internet age, that includes <a href="http://en.wikipedia.org/wiki/Richard_Stallman">Richard Stallman</a> and Vint Cert. They write:</p> <blockquote><p>Clearly, bold leadership was not the exclusive province of the established corporate interests.</p></blockquote> <p>Many other have tried for unified historical approaches, and visionary works like Wu’s are powerful and useful for understanding the past. However, write Decheney, et al.:</p> <blockquote><p>History is notoriously untidy, and all too often real-world facts stubbornly refuse to conform to what would otherwise be a terrific story.</p></blockquote> <p>Large, sweeping accounts of historical development give a readily graspable broad picture, and (hopefully) provide useful guidance, at least on large-scale decision-making. But this broad guidance can be misleading, if seductive to policmakers seeking “simple policy inferences” that can be readily employed and discussed without needing a strong understanding of the underlying concepts and factors. But these “sweeping and categorical” understandings can produce distored perspectives by politicos — think of former Alaskan <a href="http://en.wikipedia.org/wiki/Ted_Stevens">Senator Ted Stevens</a>&#8216; statement:</p> <blockquote><p>The internet is not a big truck. <a href="http://en.wikipedia.org/wiki/Series_of_tubes">It’s a series of tubes</a>.</p></blockquote> <p>Adding complexity can make decisionmaking more, well, complex, but it can also “provide a better foundation for sound public policy.” That, hopefully, is what I will be producing with my work on privacy and the telegraph in the nineteenth century.</p> "Revisiting copyright claims against Westlaw and LexisNexis: Does selling access to court-filed attorney briefs violate copyright law?" https://inpropriapersona.com/news/2012/revisiting-copyright-claims-against-westlaw-and-lexisnexis-does-selling-access-to-court-filed-attorney-briefs-violate-copyright-law/ Tue, 28 Feb 2012 19:03:40 +0000 0fe2190475a2212193d924535bfce354 <p><a href="https://inpropriapersona.com/revisiting-copyright-claims-against-westlaw-and-lexisnexis-does-selling-access-to-court-filed-attorney-briefs-violate-copyright-law/pp-roe-v-wade/" rel="attachment wp-att-5635"><img class="alignright size-medium wp-image-5635" title="Brief from Planned Parenthood for Roe v. Wade" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514416585/PP-Roe-v-Wade_eztpxn.jpg" alt="" width="300" height="300" /></a>In 2009, I wrote about a <a href="https://inpropriapersona.com/2009/07/does-selling-access-to-court-filed-attorney-briefs-violate-copyright-law/">California lawsuit against Westlaw and LexisNexis for violating copyright law by selling legal briefs of attorneys without their permission</a>. I never heard what happened to that lawsuit, but now there’s another one, this time in New York, alleging similar infringements. The Wall Street Journal’s Law Blog writes:</p> <blockquote><p>Edward L. White, a Oklahoma City, Okla., lawyer, and Kenneth Elan, claim WestLaw and LexisNexis have engaged in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them” — namely publicly filed briefs, motions and other legal documents.<br /> – <a href="http://blogs.wsj.com/law/2012/02/22/keep-your-hands-off-my-briefs-lawyers-sue-westlaw-lexis/">Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis</a></p></blockquote> <p>In 2009, I thought that such a lawsuit had potential merit, although I maintained then — and continue to believe — that the public benefits more from allowing this kind of access. On the other hand, I remain concerned that such access is only available for a very high fee through LexisNexis and Westlaw. I would rather see public access to briefs filed in public courts. I wrote, “<a href="https://inpropriapersona.com/2009/07/does-selling-access-to-court-filed-attorney-briefs-violate-copyright-law/">We are all better off if we can read them</a>.”</p> <p>Of course, such a “public good” standard is not the test for fair use, as American University’s IP blog points out when it goes through the actual four-factor test :</p> <blockquote><p>According to UCLA law professor Eugene Volokh the plaintiffs actually have a fairly decent argument because filing the briefs in court “doesn’t waive any copyright” which turns this into a murky fair use question with “no clear answer.” Fair use protection is detailed in Title 17 section 107 of the U.S. Code and stipulates that certain uses of protected materials are not infringement. These fair uses include criticism, reporting, and education. Determining fair use occurs by applying a four factor test the code provides.<br /> – <a href="http://www.ipbrief.net/2012/02/27/goodbye-to-online-research-class-action-complaint-filed-against-lexisnexis-and-westlaw-for-copyright-infringement/">Goodbye to Online Research? Class Action Complaint Filed Against LexisNexis and Westlaw for Copyright Infringement</a></p></blockquote> <p>To summarize: educational use is best, but commercial gain is OK if it’s generally for the public good; creative works receive the highest protection, but briefs are at least partly creative in nature; the reselling of the <em>full</em> brief cuts against Westlaw and LexisNexis; and, finally, whether the reuse impacts the original market for the product — it’s likely, but arguable, whether that is true in this instance.</p> <p>Remember that <a href="https://inpropriapersona.com/2010/02/you-do-not-get-an-a-for-effort-with-copyright/">copyright does not exist to reward <em>effort</em></a>, but rather as an <em>incentive</em> to create original works, as Techdirt points out:</p> <blockquote><p>The purpose of copyright law is to encourage the sharing of this kind of information and no legal brief is created because of the copyright on it. It’s simply silly to think that a legal brief should be dealing with copyright because the purpose of copyright is to incentivize the creation of the work — and there’s clearly no need for copyright in this instance.<br /> – <a href="http://www.techdirt.com/articles/20120223/15284617857/westlaw-lexis-nexis-sued-again-over-claims-that-theyre-infringing-copyrights-legal-filings-themselves.shtml">Westlaw And Lexis-Nexis Sued AGAIN Over Claims That They’re Infringing On Copyrights Of Legal Filings Themselves</a></p></blockquote> <p>Hopefully we’ll hear more about where this lawsuit ends up.</p> "The irrelevance of blog advertisements: a publisher’s lament" https://inpropriapersona.com/news/2012/the-irrelevance-of-blog-advertisements-a-publishers-lament/ Mon, 27 Feb 2012 19:12:00 +0000 123e283af84eff56e5f6c2aeb24744ec <figure id="attachment_5644" style="max-width: 300px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/ninastoessinger/5012799192/in/photostream/"><img class="size-medium wp-image-5644" title="Ask For Young's Aerated Waters " src="http://res.cloudinary.com/krisnelson/image/upload/h_214,w_300/v1514416580/Ask-For-Youngs-Aerated-Waters1_qwmisx.jpg" alt="" width="300" height="213" /></a><figcaption class="wp-caption-text">&#8220;Ask For Young&#8217;s Aerated Waters&#8221; by Flickr user ninastoessinger. CC BY-SA 2.0.</figcaption></figure> <p>After running a (horribly unscientific) poll on my <a href="https://inpropriapersona.com/">law &amp; technology blog</a> for several months, I discovered that less than 15% of people voting found <em>any</em> of the Google-served advertisements to be relevant (not unwanted… <em>irrelevant</em>).</p> <p>This is a problem.</p> <p>Google has always claimed their ads are contextual and <a href="https://support.google.com/adsense/bin/answer.py?hl=en&amp;answer=9714&amp;topic=1391535&amp;ctx=topic">targeted to the content of your pages</a>. This may once have been true — and may even be true for some people’s sites — but it isn’t true for me. Ads I serve to search-engine visitors are the best targeted, while those that rely solely on page content are the worst. I suspect Google’s increased “personalization” of ads are only going to make this worse, from the perspective of relevance to my content.</p> <p>I’ve experimented with other services, such as <a href="http://infolinks.com/">Infolinks</a> and <a href="http://konera.com/">Kontera</a>, but the vast majority of the double-underlines show up under single words with ads that are only marginally related to my page’s content. So, for example, “offer” and “credit” will link to credit-card offers. Even if “law” is underlined, it tends to link to sites on the <a href="http://en.wikipedia.org/wiki/Law_of_attraction">law of attraction</a>.</p> <p>I don’t run ads to make a profit. I run ads to pay for hosting, and I ideally want to run ads that provide some value to my visitors. So this is particularly vexing to me, but I think it’s a problem — at the very least — for any site not primarily focused on “monetization.” <em>I don’t want ads to dominate or distract, I want them to add value for everyone.</em> (Crazy, I know.)</p> <p>To try to address this, I focus Google ads mostly to search-engine visitors, and not others (though I’m always experimenting, of course, if only to keep up with trends). I’ve used services like <a href="http://www.linkworth.com/">Linkworth</a>, which at least lets me approve ads manually. I could choose to sell all my own ads directly — but I’m simply too small and too uninterested in marketing — for this to be worthwhile. I’ve found AdBrite and similar services are equally irrelevant to my visitors. Pay-for-posts — even somewhat relevant posts — make no sense for a blog like mine, even if they might be fine for a commercialized blog.</p> <p>Has anyone else experienced the problem of irrelevance? Any potential solutions? Or are well-targeted, contextual ads simply impossible to achieve?</p> "If the Fourteenth Amendment didn’t exist, could Obama still be President? (Yes)" https://inpropriapersona.com/articles/if-the-fourteenth-amendment-didnt-exist-could-obama-still-be-president-yes/ Sun, 26 Feb 2012 03:46:38 +0000 f91564c1838e3ea8b0535920df21a130 <p><a href="https://inpropriapersona.com/wp-content/uploads/2012/11/obama-integration-rockwell.jpg"><img class="alignright size-medium wp-image-5582" title="Obama, Ruby Bridges, and a Norman Rockwell" src="http://res.cloudinary.com/krisnelson/image/upload/h_200,w_300/v1514416617/obama-integration-rockwell_xwa7ek.jpg" alt="" width="300" height="200" /></a>Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational. A good example of this is <a href="http://www.turningleft.net/images/director-for-the-division-of-elections.pdf">the lawsuit Gordon Warren Epperly filed</a> in Alaska challenging President Obama’s inclusion on the 2012 presidential ballot. It shows a fuzzy grasp of the law, legal terminology, logic, and history (a little reading of case law is a dangerous thing!), but pointing out some of its flaws can help illustrate these concepts.</p> <p>Let’s begin with Epperly’s argument that, because Obama is “mulatto,” the 1857 case of <em>Dred Scott </em>means — assuming the Fourteenth Amendment never passed — he cannot be president because he cannot be a citizen:</p> <blockquote><p>As Barack Hussein Obama II is of the “mulatto” race, his status of citizenship is founded upon the <a href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution">Fourteenth Amendment to the United States Constitution</a>. Before the [purported] ratification of the Fourteenth Amendment, the race of “Negro” or “mulatto” had no standing to be citizens of the United States under the <a href="http://en.wikipedia.org/wiki/United_States_Constitution">United States Constitution</a>.</p></blockquote> <p>There are many problems with this claim. First, and most obviously, <em>Dred Scott</em>, by its own admission, does not apply to the case of Barack Obama:</p> <blockquote><p>And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves. <a href="http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford"><em>Dred Scott v. Sandford</em></a>, 60 US 393, 403 (1857).</p></blockquote> <p>Since Barack Obama is <em>not </em>the descendant of an African imported to the United States to be sold as a slave — his father was a Kenyan who went to Hawaii to study at the university, <em>not </em>to be a slave — <em>Dred Scott</em> itself says it is inapplicable.</p> <p>If we go ahead and ignore the Fourteenth Amendment, and look at early 19th-century law to see if Obama could have run for president, we are also forced to conclude that, at least theoretically, he could have done so. Before that amendment, states determined who was a citizen, not the federal government, though the Constitution then makes rules about who can become president:</p> <blockquote><p>No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.</p></blockquote> <p>When admitted to the Union in 1818, Illinois did not exclude either “Negroes” nor “mulattos” from citizenship nor from voting, although its <a href="http://en.wikisource.org/wiki/Illinois_Constitution_of_1848">1848 constitution</a> restricted voting to only “white males.” Thus, in Illinois after 1848, Barack Obama may have been a citizen, but neither he nor his mother (born in Kansas) could have voted. It is unlikely he could have been <em>elected</em>, but not explicitly forbidden. (Perhaps this is the state of society Epperly would like to return to?)  The <a href="http://www.ilga.gov/commission/lrb/conent.htm">modern Illinois constitution</a> has no such restriction, of course.</p> <p>Generally, in most states, all men — white or otherwise — who owned property could vote in early America. <a href="http://histories.cambridge.org/extract?id=chol9780521803069_CHOL9780521803069A012">Later on</a>, in the 1820s – 1840s, property restrictions were lifted, and new limitations on race were instituted instead. Thus, Obama — a property owner — could have voted in many or most states until at least the 1820s, despite being part African. (Later, of course, he would have been excluded under many state constitutions, even as a property owner.)</p> <p>The <a href="http://en.wikipedia.org/wiki/Naturalization_Act_of_1790">Naturalization Law of March 26, 1790 (1 Stat. 103)</a> — and subsequent naturalization laws before the Civil War — only allowed “free white men” to become citizens through naturalization. But <em>that</em> would only restrict Obama’s father, since Obama himself was born in the United States (although not until 1961, two years after Hawaii became a state). He had no need to be “naturalized.”</p> <p>The Supreme Court has never ruled on the meaning of “natural-born citizen,” but even commentators in the nineteenth century assumed that anyone born in the United States was a “citizen,” whatever their color — and whether they could vote or not. As early as 1829, William Rawle <a href="http://books.google.com/books?id=akEbAAAAYAAJ&amp;pg=PA80&amp;dq=every+person+born+within+the+United+States,+its+territories+and+districts,+whether+the+parents+are+citizens+or+aliens,+is+a+natural+born+citizen+in+the+sense+of+the+Constitution,+and+entitled+to+all+the+rights+and+privileges+appertaining+to+that+capacity+A+View+of+the+Constitution+of+the+United+States+of+America&amp;hl=en&amp;sa=X&amp;ei=KcxFT7XUH_HUiAKy_Jn5CA&amp;ved=0CDgQ6AEwAQ#v=onepage&amp;q&amp;f=false">agreed with this</a>, as did Attorney General Edward Bates in 1862. The 1898 case of <a href="http://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark"><em>United States v. Wong Kim Ark</em></a>, 169 US 649 cites an earlier (1844), antebellum New York case to establish that those born in the country are citizens, regardless of race:</p> <blockquote><p>That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. <em>Lynch v. Clarke</em>, (1844) 1 Sandf. Ch. 583.</p></blockquote> <p>Epperly attempts to argue that this part of <em>Wong Kim Ark </em>is mere <em>dicta</em>, and therefore not binding, but that does not change its persuasive authority, nor does negating its binding authority mean that its opposite is therefore true. He attempts to argue that two other cases are instead controlling (although his quotations are at least as much <em>obiter dicta</em> as are those of <em>Wong Kim Ark</em>).</p> <p>The first, <a href="http://en.wikipedia.org/wiki/Minor_v._Happersett"><em>Minor v. Happersett</em></a><em>,</em> 88 U.S. 162 (1874), says that those born of two citizen-parents are definitely citizens. It says that “doubts have been raised” about children <em>not</em> born of citizen-parents — but then goes on to say, “For the purposes of this case it is not necessary to solve these doubts,” <em>Id.</em> at 168. In other words, <em>Minor</em> says nothing at all about Obama’s situation, and in fact disclaims any attempt to say that it does. (Interestingly, I’d say the case actually <em>strengthens</em> the arguments against Epperly in some sense, because it makes it clear that <em>women </em>have always been citizens, even when they couldn’t vote — so even if “mulattos” couldn’t vote, they <em>could</em> be citizens, just like women.)</p> <p>The second, <em>Perkins v. Elg</em>, 307 US 325  (1939) is of limited relevance for similar reasons, since its holding involves a child of <em>two</em> United States citizens, <em>not </em>a child of a citizen and non-citizen. This is the exact point Epperly emphasizes — but fails to realize that <em>Perkin’s </em>holding says little or nothing about Obama. If Elg is a citizen because both her parents were citizens, it is a logical fallacy to say that Obama is not a citizen because one of his parents was not a citizen. Put another way, simply because it is <em>sufficient</em> to have two parents who are citizens does not mean it is <em>necessary</em>. Proving <em>sufficiency</em> does not prove <em>necessity</em>, in law or in life.</p> <p>In short, Obama was born in the United States. Regardless of the citizenship status of his parents, that would make him a citizen according to standards of the nineteenth century <em>and</em> today — even without the Fourteenth Amendment.</p> <p><em>As a side note, I tried to figure out his differentiation between “political rights” and “civil rights,” but I couldn’t follow his (non-)logic. The best approximation I could find came from Epperly’s site, </em><a href="http://www.14th-amendment.com/Miscellaneous/Articles/Citizenship.pdf"><em>in an article he wrote on citizenship</em></a><em>, which claims that the 14th Amendment granted “civil rights” and the 15th (for African-Americans) and 19th (for women) granted “political rights,” but neither granted the “natural rights” required to hold office. In other words, neither women nor African-Americans should be able to hold elected office. I could find no independent support for this in the law. </em></p> <p><strong>Related articles</strong></p> <ul> <li><a href="http://www.thegrio.com/politics/lawsuit-claims-obama-cant-be-president-because-hes-mulatto.php">Lawsuit claims Obama can’t be president because he’s ‘mulatto’</a> (thegrio.com)</li> <li><a href="http://www.outsidethebeltway.com/ron-paul-versus-the-fourteenth-amendment/">Ron Paul Versus The Fourteenth Amendment</a> (outsidethebeltway.com)</li> </ul> "Protecting vested interests in the face of new technology: the case of the Charles River Bridge" https://inpropriapersona.com/articles/protecting-vested-interests-in-the-face-of-new-technology-the-case-of-the-charles-river-bridge/ Thu, 23 Feb 2012 23:03:10 +0000 5149ade08a9d18216a7f6f52fdddd5f7 <p><a href="https://inpropriapersona.com/protecting-vested-interests-in-the-face-of-new-technology-the-case-of-the-charles-river-bridge/charles-river-bridge/" rel="attachment wp-att-5626"><img class="alignright wp-image-5626 size-medium" title="Charles River Bridge" src="http://res.cloudinary.com/krisnelson/image/upload/h_190,w_300/v1514416590/charles-river-bridge_zqohoe.jpg" alt="" width="300" height="190" /></a>In the case of <em>Charles River Bridge v. Warren Bridge</em>, <a href="http://scholar.google.com/scholar_case?case=8452832838576510185">36 U.S. 420</a> (1837), Justice <a href="http://en.wikipedia.org/wiki/Roger_B._Taney">Roger Taney</a> — most known for his opinion in <a href="http://en.wikipedia.org/wiki/Dred_Scott"><em>Dred Scott</em></a> — decided against the owners and investors in the original bridge over the Charles River in Massachusetts. That bridge had been built by a company granted a charter in 1785 for the purpose of building and operating the bridge, and given the right to collect tolls for 70 years after construction of the bridge. In 1828, in the face of rising population numbers in the area — and the continued high tolls and large profit margins of the company — the state legislature granted another company a charter to build a new bridge across the river, one that would become free to use after a short period of time. After the new bridge became free, the old one lost all its traffic — and potential profits — to the new one.</p> <p>Specifically, the Supreme Court ruled 5-2 against the old Charles River Bridge Company, saying that Massachusetts had <em>not </em>violated the federal constitution’s Contracts Clause — a victory, it was held at the time, for state’s rights (as was <em>Dred Scott</em>). Justice Taney, generally very conservative and pro-property rights (and incidentally in favor of preserving slavery, as abolition would deprive owners of property), ruled against the contracts claim of the private corporation in favor of the public good:</p> <blockquote><p>While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. (<em>Charles River Bridge</em>, 36 U.S. at 548.)</p></blockquote> <p>Taney aligned the “public good” with progress and technological improvements. Ruling in favor of the entrenched Charles River Bridge Corporation would mean that the country would “be thrown back to the improvements of the last century, and obliged to stand still.” <em>Id. </em>If an exclusive monopoly were upheld, then incumbent highway corporations would hold back development of new railroads and canals, which were booming as the new technologies of the nineteenth centuries.</p> <p>New developments and new approaches had permitted a new corporation to build a new bridge at a lower cost — and to make it free within a few years of its opening, while still turning a profit for its investors. But in doing so, the profit-making potential of the old bridge was destroyed (although investors had already made back their initial investment multiple times over).</p> <p>But hadn’t the old company taken a risk initially? Didn’t its investors <em>deserve </em>to reap their new profits because <em>they </em>had taken the risk initially? Wouldn’t setting a precedent that their state-granted monopoly could be limited later actually <em>inhibit</em> future investment?</p> <p>If these questions all seem rather familiar in the 21st century, it’s because these are the same kinds of arguments advanced by patent and copyright holders today. Pharmaceutical companies want their patent monopolies to extend further, and argue that failing to grant a sufficient monopoly would inhibit development and investment. Music and movie companies argue that their copyright monopolies should extend even further than it does now — because otherwise creation and investment would suffer.</p> <p>Taney said “no” to this argument in 1837. I’ll ask the obvious question, then: did this decision to limit a monopoly contract reduce investment and technological development in the nineteenth century? The (equally obvious) answer is, “no”: the nineteenth century gave us railroads, the telegraph, the telephone, and much, much more. If there’s anything we can learn from Taney’s 1837 decision, it’s that minimizing monopoly rights <em>does not </em>inhibit development — and, I think, the reverse is even more likely.</p> <p>It’s a lesson we would do well to keep in mind when considering the length and extent of patent and copyright monopolies.</p> "Federal common law in the nineteenth century" https://inpropriapersona.com/articles/federal-common-law-in-the-nineteenth-century/ Tue, 21 Feb 2012 01:57:34 +0000 4966422d51a8aa184439bf21579917ff <p>Before we get into a discussion of federal (United States) common law in the nineteenth century, remember that there are two kinds of “<a href="https://inpropriapersona.com/2011/12/the-scientific-development-of-common-law-precedent/">common law</a>“:</p> <ol> <li>The common-law <a href="http://en.wikipedia.org/wiki/Precedent">system of precedent</a>, where higher court decisions are binding on lower courts, as opposed to the civil law system, where courts merely interpret statutes.</li> <li>Common laws or “the common law,” created by judges and not by statutes, that bind people equally as much as any statute. They are not passed by legislatures, and are instead considered to have emerged either as encapsulations of general behavior and morals, or as increasingly accurate representations of universal laws. These are ”long established local customs having the force of laws.” <em>Swift v. Tyson</em>, 41 U.S. 1, 18 (1842).</li> </ol> <p>When the United States Constitution bound the states together in 1789, the common law (in sense #2) — inherited largely from England — was slowly but inexorably being replaced by statutory laws that often, but not always, codified earlier practices. In 1842, the Supreme Court wrote that court decisions “are, at most, only evidence of what the laws are; and are not of themselves laws.” <em>Swift</em>, 41 U.S.  at 18. They continued, “The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws.” <em>Id. </em>Common law is this second understanding.</p> <p>While this second understanding of law has died out in its pure form, the common-law system of <em>precedent</em>, continues today and — despite being nowhere explicitly written into the Constitution (though it is arguably implicit) — continues to separate the American (and other English-derived) systems from the civil-law approaches of Europe and elsewhere.</p> <p>Also important to remember when discussing this issue is the federal system of the United States, in which federal power is defined within the Constitution, and all other unenumerated powers are — in the words of the 10th Amendment — ”reserved to the States respectively, or to the people.” Even as <a href="http://en.wikipedia.org/wiki/Federal_common_law">federal common law</a> continued to be restricted, <em>state </em>common law remained unaffected by these federal Supreme Court decisions (though the trend was similar).</p> <p><strong>Criminal Law</strong></p> <p>The Supreme Court in <a href="http://en.wikipedia.org/wiki/United_States_v._Hudson_and_Goodwin"><em>United States v. Hudson &amp; Goodwin</em></a>, 11 U.S. 32, 34 (1812) took us down the path of restriction the first kind of common law (that of “local customs having the force of laws”) when it made it clear that there was no federal common law of crimes: “The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence (sic)” (this is also known as <a href="http://en.wikipedia.org/wiki/Nulla_poena_sine_lege"><em>nulla poena sine lege</em></a>). Criminal prosecutions in federal courts required a federal statute — but no mention was made of <em>civil</em> (or commercial) law until <em>Swift</em> in 1842 (which found there was, indeed, a federal <em>civil</em> common law — a decision which remained until overturned in 1938). Note that the Court did <em>not </em>rule on the status of <em>state </em>common law in regards to crimes — this was a decisions left to the states themselves.</p> <p>Why was there no federal common law of crimes? The Court reasoned that the judicial branch is granted only limited powers by the Constitution, and that its only <em>implied</em> powers are contempt of court and the enforcement of court orders, since these are necessary to, and required for, the basic functioning of any court. Criminal laws, on the other had, require an explicit grant of power to courts: “all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.” <em>Hudson, </em>11 U.S. at 34.</p> <p><strong>Civil, Commercial and Tort Law</strong></p> <p>It is not immediately obvious to me why the same logic the Supreme Court used in <em>Hudson</em> would not apply to <em>all </em>federal common law, including commercial and other civil law matters, but nonetheless the Supreme Court did not hold this to be the case until <a href="http://en.wikipedia.org/wiki/Erie_Railroad_Co._v._Tompkins"><em>Erie Railroad Co. v. Tompkins</em></a> in 1938.</p> <p>Instead, likely driven by “the connection between legal rules and nineteenth-century economic growth,” the Supreme Court in <em>Swift</em> allowed federal district judges to develop federal common law independent of state decisions and laws (<a href="http://www.amazon.com/gp/product/0195162250/ref=as_li_ss_tl?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0195162250"><em>American Legal History</em></a><em>, </em>163). Without this rule, Justice Story argues in <em>Swift</em>, the boom in interstate commerce made possible by the railroads and the telegraph could be dampened by uncertainties in the enforcement of commercial transactions.</p> <p>Still, the ruling fell on the side of a stronger federal government, and not on the side of state’s rights. Nonetheless, it was supported even by the Southerner Justice Taney, who was generally very pro-state’s rights, partly because of its economic importance. (It does fall in line, though, with Taney’s later <em>Dred Scott</em> decision in 1857.)</p> <p>Arguably, the implied existence of a federal commercial common law — at least when transactions cross state boundaries — is in line with the Constitution’s grant of federal power over interstate commerce (the “<a href="http://en.wikipedia.org/wiki/Commerce_Clause">Commerce Clause</a>“) in a way that is not true of criminal matters (which are not mentioned in the Constitution as generally falling within the purview of the federal government).  But the Court in <em>Erie</em> finally overruled <em>Swift</em> in 1938, and directly challenged this argument, holding that “no clause in the Constitution purports to confer such a power  [to create substantive rules of common law] upon the federal courts.” <em>Erie, </em>304 U.S. at 78. Federal common law was thus dead — <em>except in admiralty and international contexts </em>(more on these another time).</p> <p><strong>Conclusion</strong></p> <p>Although we — i.e., most Americans at lease — generally consider the idea of <em>nulla poena sine lege </em>(“no penalty without a law”) to be a core component of modern democracy, the legal history of the United States, at least, suggests that this principle is more complicated than it first appears. Before the nineteenth century, American law — like English common law — was often unwritten (or at least, uncodified), and was based on concepts of universal (or Biblical, in the case of the Puritans) laws. Federal law in the nineteenth century, beginning with <em>Hudson,</em> moved away from this older common-law tradition (#2, in my intro above) to our modern, precedent-based version of judicially interpreted statutory law that we now call “common law.”</p> <p>Still, it remains, in the words of Justice Marshall, ”the province and duty of the Judicial Department to say what the law is.”Marbury v. Madison, 5 US 137 (1803).</p> "Federal vs. State Power in Antebellum America" https://inpropriapersona.com/articles/federal-vs-state-power-in-antebellum-america/ Sun, 19 Feb 2012 23:34:20 +0000 5568722eebe31e9427db0d04bfe94804 <p><a href="http://www.flickr.com/photos/nantuckethistoricalassociation/3341459019/"><img class="alignright size-medium wp-image-5562" title="Arthur Cooper, Escaped Slave" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_229/v1514416623/3341459019_fc4b798fc9_o_e3b8z0.jpg" alt="" width="229" height="300" /></a>The <a href="http://en.wikipedia.org/wiki/Reconstruction_Amendments">Reconstruction Amendments</a> (13th, 14th, and 15th Amendments to the Constitution) represented a fundamental shift in the balance of power between the states and the federal government, even though their full effect took a century to fully emerge.</p> <p>Before the <a href="http://en.wikipedia.org/wiki/American_Civil_War">Civil War</a>, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via <a href="http://en.wikipedia.org/wiki/Supremacy_Clause">Article VI, Clause 2</a>), but other areas defaulted to the states (made explicit by the <a href="http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution">10th Amendment</a>).</p> <p>Southern planters generally favored state government power, as they were afraid that the foundation of their raw-material economy would be undermined if the federal government — especially a federal government led by Northern manufacturing interests — gained the power to abolish slavery in the South. Their interests were directly represented in the Constitution itself in several places: <a href="http://www.usconstitution.net/xconst_A1Sec9.html">Article 1, Section 9</a> forbid banning the slave trade until at least 1808, the “<a href="http://en.wikipedia.org/wiki/Three-Fifths_Compromise">Enumeration Clause</a>” counted slaves as 3/5ths of a person for the purposes of the census (though they could not vote, of course), and the “<a href="http://en.wikipedia.org/wiki/Fugitive_Slave_Clause">Fugitive Slave Clause</a>” required escaped slaves to be returned ”on Claim of the Party.”</p> <p>Despite these protections, Southern slaveholders grew increasingly nervous that their economic system — which they increasingly argued was not just a “necessary evil,” but rather constituted a “positive good” — would either be directly challenged by the North, or would die out if it could not expand westward.</p> <p>In the face of growing Northern power, arguments for state’s rights grew in the South — after all, if state government was at least equal to the federal government in power, then it would be difficult for the federal government (even if eventually dominated by the North) to restrict or eliminate slavery.</p> <p>But despite these growing states’ rights arguments — including Georgia and President Andrew Jackson’s refusal to follow the Supreme Court ruling that federal treaties trumped state action in the <a href="http://en.wikipedia.org/wiki/Cherokee_Nation_v._Georgia"><em>Cherokee</em></a> cases — Southerns appeared to embrace a different view of the balance between federal and state power in 1850.</p> <p>Before 1850, Northern states had become increasingly reluctant to return runaway slaves to the South, denying planters their property without recompense. Laws to add more legal protections before alleged escapees would be returned meant that the burden on Southerns seeking the return of their property grew. One reaction was vigilante-style kidnapping of blacks in the North, some of whom turned out to be free blacks, not escaped slaves. Northern laws punished kidnappers, and Southerners were unhappy.</p> <p>The <a href="http://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850">Fugitive Slave Act of 1850</a> was designed to allay the anger of the South. It created a new federal agency and new federal commissioners who acted much as had U.S. Marshalls previously. These new commissioners could deputize and track escaped slaves, and were paid by the federal government and also for each slave returned. Soon, this new agency became the largest federal employer, exceeding the number of postal employees soon after it was passed.</p> <p>The Fugitive Slave Act was anything but pro-state’s rights. To assist commissioners in apprehending slaves, troops were even sent into Boston to quell dissent and escort a captured slave from the city. Northern state laws on due process were ignored, and alleged escapees received no jury trial, no were they able to testify on their own behalf — despite Northern laws. In other words, the South embraced the law and the exercise of federal power.</p> <p>But this new balance only postponed the battle between North and South for eleven more years. Western states were increasingly adopting anti-slavery positions (although they also sometimes banned African-Americans from moving there), and the South felt increasing pressure. Even the 1857 <a href="http://en.wikipedia.org/wiki/Dred_Scott"><em>Dred Scott</em></a><em> </em>decision by the Supreme Court, led by the Southern <a href="http://en.wikipedia.org/wiki/Chief_Justice">Chief Justice</a> <a href="http://en.wikipedia.org/wiki/Roger_B._Taney">Roger B. Taney</a>, and intended to settle the slave question “once and for all” only delayed the Civil War by another few years.</p> <p>By 1861, with the election of <a href="http://en.wikipedia.org/wiki/Abraham_Lincoln">Abraham Lincoln</a> on a platform that opposed the expansion of slavery westward (though not the abolition of slavery in the South — that came later, during the war), the South had decided that secession was the only option to protect their economic and political system.</p> "Lecture on 19th-Century Legal History Before the Civil War" https://inpropriapersona.com/articles/lecture-on-19th-century-legal-history-before-the-civil-war/ Sun, 19 Feb 2012 04:49:46 +0000 f47545e66e55ea14c74fab7f5c4c3803 <p>I gave a lecture the other day to an undergraduate history class on the topic of 19th-century legal history, mostly before the start of the Civil War (with hints to the future, of course). This is hardly comprehensive &#8211; I only had 50 minutes! &#8211; but I thought I&#8217;d share anyway.</p> <div><object style="width: 420px; height: 162px;" width="320" height="240" classid="clsid:d27cdb6e-ae6d-11cf-96b8-444553540000" codebase="http://download.macromedia.com/pub/shockwave/cabs/flash/swflash.cab#version=6,0,40,0"><param name="allowfullscreen" value="true" /><param name="menu" value="false" /><param name="wmode" value="transparent" /><param name="src" value="http://static.issuu.com/webembed/viewers/style1/v2/IssuuReader.swf" /><param name="flashvars" value="mode=mini&amp;embedBackground=%23000000&amp;backgroundColor=%23222222&amp;documentId=120219011129-0db737464f0b4c56b62244d0e67d3908" /><embed style="width: 420px; height: 162px;" width="320" height="240" type="application/x-shockwave-flash" src="http://static.issuu.com/webembed/viewers/style1/v2/IssuuReader.swf" allowfullscreen="true" menu="false" wmode="transparent" flashvars="mode=mini&amp;embedBackground=%23000000&amp;backgroundColor=%23222222&amp;documentId=120219011129-0db737464f0b4c56b62244d0e67d3908" /></object></p> <div style="width: 420px; text-align: left;"><a href="http://issuu.com/krisnelson/docs/19th_century_legal_history_before_the_civil_war?mode=window&amp;backgroundColor=%23222222" target="_blank">Open publication</a> &#8211; Free <a href="http://issuu.com" target="_blank">publishing</a> &#8211; <a href="http://issuu.com/search?q=19th%20century" target="_blank">More 19th century</a></div> </div> "Ben Bratman on the First Amendment and Brandeis & Warren’s “The Right to Privacy”" https://inpropriapersona.com/articles/ben-bratman-on-the-first-amendment-and-brandeis-warrens-the-right-to-privacy/ Fri, 09 Dec 2011 20:57:38 +0000 b778464ca239cdc7a6fdb731e5ead1e3 <p><a href="https://inpropriapersona.com/2011/12/ben-bratman-on-the-first-amendment-and-brandeis-warrens-the-right-to-privacy/bratman-on-brandeis-warren/" rel="attachment wp-att-5498"><img class="alignright size-thumbnail wp-image-5498" title="Bratman on Brandeis Warren" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_1024,w_1024,x_0,y_0/h_150,w_150/v1514417232/Bratman-on-Brandeis-Warren_rrygmx.jpg" alt="" width="150" height="150" /></a>Samuel Warren and Louis Brandeis&#8217; 1890 law review article, &#8220;The Right to Privacy,&#8221; has been deeply influential over the last 100+ years. In it, Warren and Brandeis argue for a generalized right to an &#8220;inviolate personality&#8221; in the face, especially, of growing press prying and publishing of details of people&#8217;s private life, including photographs.</p> <p>Given this focus on press invasions, it is unsurprising that many scholars have seen their proposed new tort as interfering with the First Amendment guarantees of press freedoms. (See, e.g., Lorelai Van Wey&#8217;s Note, &#8220;<a href="http://heinonline.org/HOL/Page?handle=hein.journals/ohslj52&amp;g_sent=1&amp;collection=journals&amp;id=311">Private Facts Tort: The End is Here</a>.&#8221;) Ben Bratman&#8217;s 2002 law review article, &#8220;<a href="http://ssrn.com/abstract=1334296">Brandeis &amp; Warren&#8217;s &#8216;The Right to Privacy and the Birth of the Right to Privacy&#8217;</a>&#8221; discusses the background of this issue in light of &#8220;the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy&#8221; (636).</p> <p>In 1890, when Warren and Brandeis&#8217; published their article, the First Amendment of the Bill of Rights had yet to be applied to the states, although many states had their own versions. Despite this, in many ways &#8220;freedom of speech and the press&#8221; was viewed in stronger terms then than now (despite the fact that the <a href="http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts">Alien and Sedition Acts</a> of 1798 was never challenged by the Supreme Court). There was, for example, no perceived difference between commercial and political speech&#8211;both were granted the same level of protection. The nineteenth century juries Thomas Cooley&#8217;s position on the issue was generally considered the most persuasive:</p> <blockquote><p>The constitutional liberty of speech and ofthe press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. (Bratman 637)</p></blockquote> <p>Warren and Brandeis were not unaware of this potential conflict, and carved out an exception to their proposed tort by adding a</p> <blockquote><p>&#8220;public interest&#8221; or &#8220;public character&#8221; exception to their tort, which recognized that the press or commercial photographers had to be free to record and report the actions of public characters and officials (Bratman 636)</p></blockquote> <p>In other words, even Warren and Brandeis, despite their argument that they were not inventing anything new at all, recognized that the right to privacy they were articulating had the potential to conflict with the guarantees of the First Amendment.</p> "“The Right to Privacy” by Warren and Brandeis" https://inpropriapersona.com/articles/the-right-to-privacy-by-warren-and-brandeis/ Fri, 09 Dec 2011 19:43:02 +0000 d5e968c36f7f1eb66963478f0a61bd57 <p><a href="https://inpropriapersona.com/2011/10/thinking-about-privacy-and-the-first-amendment/right-to-privacy/" rel="attachment wp-att-4514"><img class="alignright size-thumbnail wp-image-4514" title="Right to Privacy by Warren and Brandeis" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_1024,w_1024,x_0,y_0/h_150,w_150/v1514417259/right-to-privacy_fiq7e8.jpg" alt="" width="150" height="150" /></a>The modern &#8220;right to privacy&#8221; is frequently attributed to Warren and Brandeis&#8217; groundbreaking 1890 law review essay of that same name. Its initial purpose, <a href="http://www.amazon.com/Right-Privacy-Foreword-Steven-Childress/dp/1452819246">according to Steven Childress</a>, was to recognize, within the traditional common law, &#8220;a civil and non-contractual right of protection against invasions of privacy.&#8221; Their stated goal was to protect a person&#8217;s &#8220;inviolate personality&#8221; (<a href="http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html">Warren and Brandeis</a>&nbsp;195, 215) especially in the face of an increasingly invasive press whose impositions were made possible through new technologies like photography and faster newspaper printing and distribution.</p> <blockquote><p>In their twenty-eight page piece, Brandeis and Warren chastised the journalists o f their day, particularly photojournalists, for prying into people&#8217;s private lives in search oqawdry and alluring &#8220;news,&#8221; and then made a cogent plea for the law to recognize a right to privacy and to impose liability in tort for these and other types of invasions of privacy. They got what they wanted&#8211;and more. (<a href="http://ssrn.com/abstract=1334296">Bratman</a> 624)</p></blockquote> <p>Much of their argument focused on limiting the public dissemination of private details of a person&#8217;s life, a goal that many find to conflict with First Amendment protections of speech and the press. But Warren and Brandeis saw the right to privacy as articulating an existing principle that had already been applied in many other contexts without constitutional problems: protections of one&#8217;s home, prohibitions of the publication of one&#8217;s private papers, and prohibitions against slander and libel.</p> <p>Warren and Brandeis began their article by discussing the well-settled protections afforded by the common law to both people and property. The argued that the law had responded to &#8220;social, political, and economic changes&#8221; by expanding what it protected, such that the law now protected not just against battery, but the threat of battery (assault), as well as assaults on reputation (slander and libel) and even intangible &#8220;products of the mind,&#8221; like copyright and goodwill (Bratman 630).</p> <p>The starting point of their critique of existing protections is the press:</p> <blockquote><p>The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade. &#8230; To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. (Warren and Brandeis 196)</p></blockquote> <p>Warren and Brandeis proceed to reason that privacy deserves protection through analogy to existing law. Thus, the rights to &#8220;intellectual and artistic property&#8221; were &#8220;instances and applications of a general right to privacy.&#8221; In the case of copyright, for example, what is protected is not the <em>quality&nbsp;</em>of the writing or its artistic value:&nbsp;the &#8220;existence of the right [does not] depend upon the nature or value of the thought or emotion &#8230; [as] the same protection is accorded to a casual letter or an entry in a diary.&#8221; Thus, just because a photograph of me does not have artistic value does not mean it should not be protected, since its protection arises from being <em>me</em>, not from the effort invested by the photographer nor from its potential status as an important commentary on life. Even if I send a letter to someone else, they do not have the write to publish it without my consent.&nbsp;The underlying goal is to allow an individual to control the dissemination of what&nbsp;is, fundamentally, <em>theirs.</em>&nbsp;But it is not a property right in the traditional sense, and is not about physical possession or trespass:</p> <blockquote><p>The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality (205).</p></blockquote> <p>And the invasion of privacy, they continue, is like the &#8220;injuries sustained &#8230; by an attack upon reputation &#8230; or a violation of honor.&#8221; In each case the injury is non-physical, but real, and similar injuries are already punishable by law. In short, &#8220;existing law affords a principle which may be invoked to protect the privacy of the individual&#8221; (206).</p> "What is the First Amendment?" https://inpropriapersona.com/articles/what-is-the-first-amendment/ Thu, 08 Dec 2011 23:42:50 +0000 91de5788b9f4c149f8e2681c2b71adf3 <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/38782010@N00/392604104"><img class="zemanta-img-inserted" title="Scaffolding &amp; First Amendment Of The Constitut..." src="http://farm1.static.flickr.com/125/392604104_311490e80f_m.jpg" alt="Scaffolding &amp; First Amendment Of The Constitut..." width="240" height="180" /></a><figcaption class="wp-caption-text">Image by takomabibelot via Flickr</figcaption></figure> <p>The <a class="zem_slink" title="First Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" rel="wikipedia">First Amendment to the United States Constitution</a> is first of ten Amendments that constitute the so-called &#8220;Bill of Rights.&#8221; It originally bound only the federal government&#8211;not state governments&#8211;but after the Civil War, it slowly began to be &#8220;incorporated&#8221; through the <a class="zem_slink" title="Fourteenth Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution" rel="wikipedia">Fourteenth Amendment</a> to apply to the states as well. It reads as follows:</p> <blockquote><p>Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.</p></blockquote> <p>It consists of multiple parts:</p> <ol> <li>The <a class="zem_slink" title="Establishment Clause of the First Amendment" href="http://en.wikipedia.org/wiki/Establishment_Clause_of_the_First_Amendment" rel="wikipedia">Establishment Clause</a>, which forbids government support of any particular religion. This is also considered to be the foundation for the &#8220;separation of church and state&#8221;: the requirement that religious and governmental matters not overlap. It is not an absolute prohibition, and many conservatives see it not as requiring the removal of God or prayer from public life, but rather as a prohibition on establishing and promoting one specific state church.</li> <li>The <a class="zem_slink" title="Free Exercise Clause of the First Amendment" href="http://en.wikipedia.org/wiki/Free_Exercise_Clause_of_the_First_Amendment" rel="wikipedia">Free Exercise Clause</a>, which generally forbids governmental interference in religious practices absent a &#8220;compelling state interest.&#8221;</li> <li>Freedom of Speech, which generally&#8211;although not absolutely&#8211;protects the right to speak even if it offends others. The classic example of an acceptable limitation is that one may be punished for the harm that results from yelling, &#8220;Fire!&#8221; in a crowded theater. The protection is against government restrictions on speech, not private restrictions, although private restrictions that invoke state power (as with a libel action) are subject to First Amendment scrutiny as well.</li> <li><a class="zem_slink" title="Freedom of the press" href="http://en.wikipedia.org/wiki/Freedom_of_the_press" rel="wikipedia">Freedom of the Press</a>, a right very related to the previous one, but focused more on publications than individuals. It is also subject to limitation (libel, for example). Regulation of broadcast media is not generally a violation of press freedoms, although content-based regulations are usually not allowable.</li> <li>The <a class="zem_slink" title="Freedom of assembly" href="http://en.wikipedia.org/wiki/Freedom_of_assembly" rel="wikipedia">Freedom of Assembly</a> and to Petition, although directly stated, have rarely been ruled on by the Supreme Court. The general idea is that&#8211;subject to reasonable time, place, and manner requirements&#8211;citizens are allowed to gather and ask for a redress of grievances.</li> <li><a class="zem_slink" title="Freedom of association" href="http://en.wikipedia.org/wiki/Freedom_of_association" rel="wikipedia">Freedom of Association</a> is a right implied by the First Amendment, although not directly stated. Thus, political parties may exclude those of another party from voting in their primaries, and the Boy Scouts may exclude openly gay scoutmasters.</li> </ol> <div>Although strong rights&#8211;the American right to speak is much stronger than that allowed under most European rights regimes, for example&#8211;none of the rights guaranteed under the First Amendment are absolute. All of them are subject to various forms of limitation and restriction, such as reasonable time, place, and manner restrictions on assembly and speech, punishments for libelous or slanderous speech, and so on.</div> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=e1ea81a5-93be-49ff-9500-1d08af61eaaa" alt="" /></div> "Civil law’s influence on early United States law" https://inpropriapersona.com/articles/civil-laws-influence-on-early-united-states-law/ Tue, 06 Dec 2011 01:53:03 +0000 7acb0793643f2f0aeee57988963cd4a7 <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/b1ur/5691620374"><img title="Roman Law" alt="" src="http://farm6.staticflickr.com/5061/5691620374_15ae095c0a_m.jpg" width="240" height="153" /></a><figcaption class="wp-caption-text">&#8220;Roman law&#8221; by Eugene Yurevich. CC BY-NC-ND 2.0.</figcaption></figure> <p>It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to &#8220;pure&#8221; common law (see, e.g., <a title="Civil law and courts of equity: the common law is hybrid law" href="https://inpropriapersona.com/2011/10/civil-law-and-courts-of-equity-the-common-law-is-hybrid-law/" rel="bookmark">Civil law and courts of equity: the common law is hybrid law</a> and <a title="Civil law's influence on American common law: the appeal" href="https://inpropriapersona.com/2011/10/civil-laws-influence-on-american-common-law-the-appeal/" rel="bookmark">Civil law&#8217;s influence on American common law: the appeal</a>).</p> <p>Another interesting story of the influence of civil law involves a push early on in the history of the United States to bring in civil law approaches, in part as a means to distinguish American law from English law, as well as to help unify the laws of disparate states. Then as now, too, civil law&#8211;which emphasizes statutory rules over judicial lawmaking&#8211;was seen to reduce the potentially arbitrary power of an unelected judiciary.</p> <p>In &#8220;<a href="http://www.jstor.org/stable/1071601">The Attraction of the Civil Law in Post-Revolutionary America</a>,&#8221; <a class="zem_slink" title="Peter Stein" href="http://en.wikipedia.org/wiki/Peter_Stein" rel="wikipedia">Peter Stein</a> quotes Sir Henry Maine as saying in 1856 that the Unites States was not part of &#8220;the common-law camp,&#8221; but instead had ceased to adhere to the single English (or New English) common-law model by 1825 (403). Instead, claimed Maine, Roman law was &#8220;fast becoming the <em>lingua franca </em>of universal jurisprudence&#8221; as many newer American states were looking to it for their &#8220;substratum&#8221; instead of English common law (404).</p> <p>Early legal education, both in America and in England, contained civil-law materials, including Justinian&#8217;s <em>Digests</em> and <em>Institutes,</em> along with treatises (in English translation) on international and natural law by Grotius and Pufendorf, among others (405). Also, many early American legal educators were Scots, and Scotland is a civil-law country (405). James Madison, John Adams, and Thomas Jefferson all engaged with the civil-law tradition in their educations (405-06).</p> <p>Unlike the perceive chaos of the common law, &#8220;[i]n eighteenth century eyes the civil law was associated with order, clarity and coherence&#8221; (406). After the Revolution, there was a sense that the United States needed its own legal approach based on the best the world had to offer:</p> <blockquote><p>efforts should be made to develop a particular American jurisprudence, which would not be a slavish imitator of the English common law, but would be eclectic&#8211;selecting the best principles and methods from whatever system they might be found in (407).</p></blockquote> <p>Additionally, although the common law had been seen as a check to the King&#8217;s power, it was also viewed with &#8220;considerable distrust &#8230; as an English product and a corresponding sympathy for things French&#8221; (410). Is it any wonder, then, with this desire to create a new nation, along with the positive perception of civil law, that civil law influenced early American jurists?</p> <p>In the early part of the nineteenth century, American judges cited approvingly to both English legal precedent and to civil law treatises: &#8220;in New York, at least, they adopted a policy of eclecticism, considering the common-law and civil-law authorities respectively and then choosing one or the other&#8221; (409).</p> <p>Especially in the areas of commercial law, maritime law, and international law, the civil law was particularly influential. English commercial law was revolutionized by Lord Mansfield in the period just before and after the Revolution, but his influence had little impact initially on the new nation (412). Instead, jurists turned to well-developed mercantile principles in civil law. In maritime and international law, Roman law&#8211;since so many European nations based their system on it&#8211;had especially force, and continue to do so today (421).</p> <p>Although English precedent and English cases were used extensively in early America, early nineteenth century jurists lacked today&#8217;s judges antipathy to foreign precedent and approaches. Caleb Cushing wrote in the early 1800s:</p> <p>The common, civil, and customary law of Europe have each precisely the same force with us in this branch; that is, our courts study them all, and adopt from them whatever is most applicable to our situation, and whatever is on the whole just and expedient, without considering either of course obligatory (422).</p> <p>But by 1850, writes Stein, civil law had faded from American consciousness. Why?</p> <ol> <li>The most zealous champions of the civil law held high office, but their ideas &#8220;never permeated down to the humdrum practitioner of the law.&#8221;</li> <li>Codifiers of American law continued to turn to civil law statutes as models, but not to its general unifying principles; they looked instead to its practical implementations (like the <em><a class="zem_slink" title="Napoleonic code" href="http://en.wikipedia.org/wiki/Napoleonic_code" rel="wikipedia">Code Napoleon</a></em>), and drew on English thinkers like Jeremy Bentham instead of Justinian.</li> <li>Historians of Roman law then took over, emphasizing &#8220;questions of learned jurisprudence&#8221; and not &#8220;point[s] of great practical import.&#8221; (432)</li> </ol> <p>Nonetheless, even though Stein sees the 1840s as the decline of civil law&#8217;s influence in America, I see point 2, above, as indicative that it continued to play a role in the development of American statutes&#8211;but one that is less obvious and more subtle than direct cites to civil-law authorities by American judges.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" alt="" src="http://img.zemanta.com/pixy.gif?x-id=cfdcc148-65b9-4d4f-b542-bb96c92ae41e" /></div> "The (scientific) development of common-law precedent" https://inpropriapersona.com/articles/the-scientific-development-of-common-law-precedent/ Mon, 05 Dec 2011 23:13:31 +0000 ba60250595ac136cdea7351d903f6142 <p><a href="https://inpropriapersona.com/2011/12/the-scientific-development-of-common-law-precedent/emory-law-journal/" rel="attachment wp-att-5422"><img class="alignright size-thumbnail wp-image-5422" title="Emory Law Journal" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_719,w_719,x_115,y_0/h_150,w_150/v1514417235/emory-law-journal_xnhhey.jpg" alt="" width="150" height="150" /></a>One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of <em>stare decisis.</em> But before the seventeenth century, the defining characteristic of English common law was <em>not </em>this one, but rather that common law <em>reflected</em> universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, <em>not </em>as binding in themselves.</p> <p>For this reason, Bracton&#8217;s thirteenth-century treatise <em>On the Laws and Customs of England</em> &#8220;reflected the canonist [i.e., the civil law] rule &#8230; that &#8216;one must judge not by examples but by reasons'&#8221; (see &#8220;<a href="http://books.google.com/books/about/The_transformation_of_English_legal_scie.html?id=TaPGHAAACAAJ">The Transformation of English Legal Science</a>&#8221; by <a class="zem_slink" title="List of Hey Arnold! characters" href="http://en.wikipedia.org/wiki/List_of_Hey_Arnold%21_characters" rel="wikipedia">Harold Berman</a> and <a class="zem_slink" title="Charles Reid" href="http://en.wikipedia.org/wiki/Charles_Reid" rel="wikipedia">Charles Reid</a>, Jr., ):</p> <blockquote><p>Cases, that is, judicial decisions, could be used to illustrate legal principles, but were not themselves an authoritative source of law. &#8230; If a judge did not approve of a previous decisions, or even of a previous custom of the court, he might say it was wrong and disregard it. (445)</p></blockquote> <p>In the seventeenth century, this began to change. <a class="zem_slink" title="Edward Coke" href="http://en.wikipedia.org/wiki/Edward_Coke" rel="wikipedia">Edward Coke</a> began some of the first modern compendiums of judicial decisions, connecting the reasoning for new cases to the authority granted by previous decisions. But this was still not binding precedent, and Coke &#8220;would reach out for anything said by a judge in an earlier case if it seemed to him to reflect a true legal principle&#8221; (447). In other words, Coke made precedent <em>more </em>authoritative, but the ultimate search was still for universal <em>principles. </em></p> <p>The eighteenth century jurist <a class="zem_slink" title="Matthew Hale (jurist)" href="http://en.wikipedia.org/wiki/Matthew_Hale_%28jurist%29" rel="wikipedia">Matthew Hale</a> saw prior decisions as <em>evidence</em> of the true principle or rule (448). But judicial decisions themselves &#8220;did not make a Law properly so-called, (for that only the King and Parliament can do)&#8221; (448). In other words, judges &#8220;do not &#8216;make&#8217; laws, but &#8216;find&#8217; them in the received legal tradition, and &#8216;declare&#8217; them&#8221; (448). Modern judicial precedent&#8211;strict <em>stare decisis, </em>requiring lower courts to follow previous decisions (but not <em>dictum</em>)&#8211;did not emerge until the nineteenth century. Before this, it was a &#8220;line of cases&#8221; that mattered, <em>not </em>a particular holding. Judicial custom matters because it involves multiple decisions over time. Thus, in 1762, <a class="zem_slink" title="William Murray, 1st Earl of Mansfield" href="http://en.wikipedia.org/wiki/William_Murray%2C_1st_Earl_of_Mansfield" rel="wikipedia">Lord Mansfield</a> still maintained that &#8220;[t]he reason and spirit of cases make law; not the letter of particular precedents&#8221; (449).</p> <p>Berman and Reid summarize the development of precedent as follows:</p> <ol> <li>common lawyers had always discussed cases and opinions, and did not simply look to written statutes;</li> <li>but prior to the sixteenth century, they had &#8220;no doctrine of precedent,&#8221; and only in the seventeenth century developed a version of persuasive authority largely confined to procedure and custom;</li> <li>Coke and others challenged the King by using pre-Tudor precedents, and thus brought precedent forward as an important part of common-law decisions;</li> <li>but common-law courts avoided binding precedent still, and looked to prior decisions to extract the principles of judicial custom, but began to apply precedent to both procedural and substantive matters;</li> <li>at the end of the seventeenth century, common-law courts continued to develop doctrines involving precedent, especially distinguishing <em>dicta </em>from holdings to extract principles that could apply to the past and the future: &#8220;the principle of precedent was a dynamic and not a static one&#8221; (450).</li> </ol> <p>Berman and Reid further tie the development of precedent to scientific and empirical developments of the Enlightenment as well. Even as Robert Boyle and Isaac Newtown emphasized reason and evidence in their scientific pursuits, so too did English jurists seek the &#8220;professional verification and acceptance of empirical observation&#8221; (450). Thus, repeated applications of similar approaches became good empirical evidence for the validity of a rule, &#8220;just as the repeated confirmation of the results of scientific experiments by physicists and chemists was treated as proof of the probable truth of their findings&#8221; (451).</p> <p>&nbsp;</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ae6a2a18-ce66-4ce3-8d94-b76cf9de434d" alt="" /></div> "Privacy and the silo/filter/echo problem" https://inpropriapersona.com/articles/privacy-and-the-silo-filter-problem/ Mon, 05 Dec 2011 00:01:34 +0000 62c9661503a9ef85e511f2ad3906d127 <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/thekellyscope/5084883823"><img title="Silos" src="http://farm5.staticflickr.com/4104/5084883823_4434d77a76_m.jpg" alt="" width="240" height="160" /></a><figcaption class="wp-caption-text">&quot;Silos&quot; by Sean Kelly. CC BY-NC-SA 2.0.</figcaption></figure> <p>The push for &#8220;privacy&#8221; that demands an ability to allow us to restrict who sees what&#8211;enabled, for example, by new tools in Facebook and Google+&#8211;also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But  this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the <a class="zem_slink" title="First Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" rel="wikipedia">First Amendment</a>) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?</p> <h2>The Marketplace of Ideas</h2> <p>Core to many American arguments on behalf of the value to a <a href="http://en.wikipedia.org/wiki/Liberal_democracy">liberal democracy</a> (in the old sense of liberal) of the freedom to speak is the concept of a &#8220;<a href="http://en.wikipedia.org/wiki/Marketplace_of_ideas">marketplace of ideas</a>,&#8221; articulated by both Thomas Jefferson and, perhaps most persuasively, by <a class="zem_slink" title="John Stuart Mill" href="http://en.wikipedia.org/wiki/John_Stuart_Mill" rel="wikipedia">John Stuart Mill</a> in<a href="http://en.wikipedia.org/wiki/On_Liberty"> On Liberty</a>. The idea is that only through free and prolific competition amongst ideas, achieved through open discussion, can one ascertain truth and, in turn, advance society. Without hearing falsehoods, one can never be sure of one&#8217;s truth, and through proving something false one verifies and re-invigorates truth and beliefs. But without the competition, truth is unobtainable, and even if obtained, belief in it becomes enervated and weak. Constant exposure to different viewpoints is absolutely key to a functioning, progressing society.</p> <h2>Republic.com and the Problem of Silos</h2> <p><a href="http://www.amazon.com/gp/product/0691133565/ref=as_li_ss_il?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0691133565"><img class="alignleft" style="border-style: initial; border-color: initial; border-image: initial; border-width: 0px;" src="http://ws.assoc-amazon.com/widgets/q?_encoding=UTF8&amp;Format=_SL160_&amp;ASIN=0691133565&amp;MarketPlace=US&amp;ID=AsinImage&amp;WS=1&amp;tag=commentinprop-20&amp;ServiceVersion=20070822" alt="" width="103" height="160" border="0" /></a><img style="border: none !important; margin: 0px !important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0691133565" alt="" width="1" height="1" border="0" />In 2002, prolific author <a class="zem_slink" title="Cass Sunstein" href="http://en.wikipedia.org/wiki/Cass_Sunstein" rel="wikipedia">Cass Sunstein</a> (in <em>Republic.com, </em>then again in <em>Republic.com 2.0</em> in 2007) expressed deep concern about exactly this, arguing that trends in individualizing information flow were as harmful to democracy as were trends to centralize information control. In other words, having 1,000 individual silos tailored to personal interests could limit the free-flow of ideas as much as (or more than) having, say, three sources of broadcast news once did. In either case we would limit our exposure to diverse viewpoints and, in the individualized, modern case, <em>also</em> limit the beneficial unifying effect that shared viewpoints provided.</p> <h2>Free Speech and Privacy</h2> <p>This concern is different, though possibly related, to that expressed by <a class="zem_slink" title="Eugene Volokh" href="http://en.wikipedia.org/wiki/Eugene_Volokh" rel="wikipedia">Eugene Volokh</a> in regards to free speech and privacy. His argument is with governmental regulations/laws/decisions that attempt to protect privacy by restricting what other people can say. That is, privacy laws that prevent, for example, a journalist from writing about my medical history infringe on the First Amendment.</p> <p>In contrast to governmental action, the impact of speech silos on democracy is not a question of infringement on private liberties. Instead, through purely private decisions, freely achieved by my own decisions and without interference from government, the same pernicious, long-term impact on democracy and liberty is achieved. In one case, government blocks the sharing of ideas to protect me, while in the other, I block my own sharing of, <em>and my own exposure to</em>, the ideas of others. But in both cases, the marketplace is undermined.</p> <p>But in the case of government regulations, the Constitution can be invoked as an authority, while in the case of Facebook and Google+ privacy settings, there is no legal check aimed at preserving the marketplace of ideas. Arguments for liberty, which appear to fruitfully favor a multiplicity of viewpoints in the case of government regulations that restrict speech in the name of privacy, instead favor allowing individuals and companies to enable avoiding the kinds of other viewpoints that Mill&#8211;and Volokh&#8211;argue are valuable for a liberty-loving democracy. One might argue to simply get government out of the privacy game at all (since the government has encouraged Facebook, for example, to focus on allowing privacy controls)&#8211;but that doesn&#8217;t deal with the very real market ($$$, eyeballs) demand for greater control over sharing.</p> <p>Sunstein advocates for a larger governmental role in overseeing media and sites in order to guarantee that people have the option, at least, of exposure to a myriad of viewpoints. (Exactly how one might do this is far from clear, though.) But the core of the contemporary filter problem is not one of big corporations restricting our exposure (or not that alone) to new ideas. Instead, it is <em>our own</em> individual choices to limit our own exposure to alternative viewpoints that is to blame. A benevolent dictator might be able to counteract this trend, but a liberal democracy cannot (or can it?) do so through government fiat. The conflict, then, is not so much between constitutional rights as much as it is a conflict between core values: privacy and control vs. exposure and learning.</p> <h2>Education</h2> <p>So how can we attempt to solve this conundrum? An effective K-12 educational system, backed up by a robust university education, is the best societal approach I can imagine. (Individual parents can help, too.) A classroom is one of the few locations where we as a society have the chance to <em>force</em> people to be exposed to new ideas. Teaching and inspiring students to seek out alternative perspectives and critically analyze them&#8211;without rejecting the new and unusual out of hand&#8211;is perhaps the least coercive method I can imagine for maintaining a marketplace of ideas in the face of tools that enable an individual to opt out.</p> <p>But I&#8217;m open to other ideas, so if you have any, please share!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/10/thinking-about-privacy-and-the-first-amendment/">Thinking about privacy and the First Amendment</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.onthemedia.org/2011/jun/17/echo-chamber-revisited/transcript/">The Echo Chamber Revisited</a> (On the Media, npr.org)</li> <li class="zemanta-article-ul-li">The <a href="http://www.amazon.com/Filter-Bubble-What-Internet-Hiding/dp/1594203008">Filter Bubble</a> (amazon.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=355fb230-2ad0-45d3-84f0-56986148fa4b" alt="" /></div> "Daniel Solove’s six general types of privacy" https://inpropriapersona.com/articles/daniel-soloves-six-general-types-of-privacy/ Sun, 04 Dec 2011 00:33:14 +0000 c0c29225f2090b3ec0582e6a96f4cb1f <p>Daniel Solove, in <a href="https://www.amazon.com/Understanding-Privacy-Daniel-J-Solove/dp/0674035070?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0674035070"><em>Understanding Privacy</em></a>, attempts to characterize and understand the complex and contradictory modern views and approaches to privacy. For Solove, &#8220;[p]rivacy concerns and protections do not exist for their own sake; they exist because they have been provoked by particular problems&#8221; and it &#8220;is protection from a cluster of related problems that impinge upon our activities in related ways&#8221; (76). <a href="https://www.amazon.com/Understanding-Privacy-Daniel-J-Solove/dp/0674035070?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0674035070" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/51zsmGsb1bL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/51zsmGsb1bL.jpg" alt="Understanding Privacy" /> </a></p> <p>He takes in many respects a practical approach, though he does look into philosophical issues too. But his concern is with &#8220;specific types&#8221; and &#8220;specific activities&#8221;:</p> <blockquote><p>We should conceptualize privacy by focusing on the specific types of disruption and the specific activities disrupted rather than looking for the common denominator that links all of them. &#8230; Instead of construction an understanding of privacy from the top down by first seeking to elucidate an overarching conception of privacy, we should develop our understanding from a bottom-up examination of the problems based on analogical reasoning. (76)</p></blockquote> <p>He takes a common-law jurist&#8217;s approach to analyzing a problem, one enshrined in the legal requirement that American courts must deal above all with specific &#8220;<a href="http://en.wikipedia.org/wiki/Case_or_Controversy_Clause">cases and controversies</a>,&#8221; not general theories or philosophical ideas. From the specific facts and harms one can then reason by way of analogy to larger concepts, deriving rules that can be applied to current and future situations. In short, his is a classic American approach to legal reasoning. But it&#8217;s classic for a reason: it works.</p> <h4>The Six</h4> <p>To facilitate his analysis, Solove likes to use &#8220;classifications&#8221; and &#8220;taxonomies.&#8221; He thus begins by dividing privacy into six types (which he notes &#8220;often overlap&#8221;). These six are not so much normative or suggested analytic categories as they are ones commonly used in privacy analysis:</p> <ol> <li>the right to be let alone&#8211;Samuel Warren and Louis Brandeis&#8217; famous formulation of the right to privacy;</li> <li>limited access to the self&#8211;the ability to shield oneself from unwanted access by others;</li> <li>secrecy&#8211;the concealment of certain matters from others;</li> <li>control over personal information&#8211;the ability to exercise control over information about oneself;</li> <li>personhood&#8211;the protection of one&#8217;s personality, individuality, and dignity; and</li> <li>intimacy&#8211;control over, or limited access to, one&#8217;s intimate relationships or aspects of life. (13)</li> </ol> <h5>1. The Right to Be Let Alone</h5> <p>This deeply influential category comes from Samuel Warren and Louis Brandeis&#8217; 1890 law review article, &#8220;<a href="http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html">The Right to Privacy</a>,&#8221; and &#8220;views privacy as a type of immunity or seclusion&#8221; (18). Warren and Brandeis were responding to the growth of an increasingly invasive and fast-moving press by seeking to demonstrate how traditional common-law torts could be rationally extended to cover this new situation, without introducing any radically new concepts.</p> <p>Though it seems to emphasize <em>noninterference,</em> it actually often consists &#8220;of a claim <em>for</em> state interference in the form of legal protection against other individuals&#8221; (18). In many respects, especially as articulated to deal with the situation of invasive journalism, <a href="https://inpropriapersona.com/2011/10/thinking-about-privacy-and-the-first-amendment/">it runs into potential First Amendment conflicts</a> that require, at the very least, balancing.</p> <h5>2. Limited Access to the Self</h5> <p>The point of this view of privacy&#8211;closely related to the previous&#8211;is to allow &#8220;every man to keep his affairs to himself&#8221; and &#8220;recognizes the individual&#8217;s desire for concealment and for being apart from others,&#8221; but it &#8220;is not equivalent to solitude [nor] of withdrawal from other individuals&#8221; (18). Conceptually, one flaw with this view is that it provides little guidance &#8220;as to the degree of access necessary to constitute a privacy violation&#8221; (20). It also does not clearly indicate who decides: is it about me deciding what access others have to my self? Or is there a sort of absolute or universal standard that can be brought into play?</p> <h5>3. Secrecy</h5> <p>Judge Richard Posner called this &#8220;concealment of information,&#8221; or the &#8220;right [of an individual] to conceal discreditable facts about himself&#8221; (21). Solove describes secrecy &#8220;as a subset of limited access to the self,&#8221; but in only one dimension: &#8220;the concealment of personal facts&#8221; (22). According to Solove, this conception &#8220;underpins the constitutional right to information privacy, an offshoot of &#8230; cases such as <em>Griswold v. Connecticut</em> and <em>Roe v. Wade</em>&#8221; (22). It is also the aspect of privacy I identify most firmly with a clear constitutional right: the <a href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> right to be free from &#8220;unreasonable searches and seizures.&#8221;</p> <p>Legally, a privacy-as-secrecy approach often means that once a fact leaks, &#8220;it can no longer remain private&#8221; (22). Thus, Fourth Amendment jurisprudence &#8220;holds that matters that lack complete secrecy are not private&#8221; (22). This, garbage receives no protection because it is &#8220;knowingly exposed to the public&#8221; since it is &#8220;readily accessible&#8221; (22). Surveillance from aircraft does not implicate the Fourth Amendment either, since &#8220;the surveillance was conducted from a public vantage point&#8221; (22).</p> <p>But such characterizations of privacy as secrecy misses out on a desire for <em><a href="https://inpropriapersona.com/2011/04/confidentiality-vs-privacy/">confidentiality</a></em>: &#8220;sharing the information with a select group of trusted people&#8221; (23). Protecting confidentiality&#8211;<a href="https://inpropriapersona.com/2011/02/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">which I, picking up on Solove&#8217;s work, identify as a 19th-century concern</a>&#8211;is a critical form of privacy for many people, especially in the medical context. Thus, understanding privacy as secrecy alone is too restrictive and too limited.</p> <h5>4. Control over Personal Information</h5> <p>According to Solove, a Clinton-era task force on privacy defined it as follows:</p> <blockquote><p>an individual&#8217;s claim to control the terms under which personal information&#8211;information identifiable to the individual&#8211;is acquired, disclosed, and used (24).</p></blockquote> <p>This is also the conception that healthcare laws related to privacy (like <a href="http://en.wikipedia.org/wiki/Health_Insurance_Portability_and_Accountability_Act">HIPPA</a>) use. But again, this conception is overly narrow, since excludes non-informational aspects of privacy, &#8220;such as the right to make certain fundamental decisions about one&#8217;s body, reproduction, or rearing of one&#8217;s children&#8221; (25). It also generally fails to define what &#8220;control&#8221; means, and usually fails to effectively define the scope of what is protected (25-26).</p> <p>Another, related approach to control over personal information makes information into property. This <a href="http://en.wikipedia.org/wiki/John_Locke">Lockean</a> approach is &#8220;the backbone of intellectual-property law,&#8221; which itself derives much of its justification from the &#8220;romantic-author&#8221; notion of individual authorial (or inventive) creation: &#8220;one gains a property right in something when it emanates from one&#8217;s self&#8221; (26). The tort of appropriation, and the connected <a href="http://en.wikipedia.org/wiki/Personality_rights">right of publicity</a>, &#8220;protects people against others&#8217; using their image or likeness for commercial gain.</p> <p>But this conception also has problems, too. Personal information &#8220;is both an expression of the self and a set of facts&#8211;a historical record of one&#8217;s behavior&#8221; (27). Denying journalists the right to present those facts implicates the First Amendment, among other issues. Thus, truth is a defense to defamation, which itself is tort related to privacy.</p> <p>Additionally, personal information is often formed through relationships (see confidentiality, above, too), and not by a single individual&#8217;s &#8220;self.&#8221; Thus, one person recounting <em>their own</em> story may implicate the story of someone else&#8211;should they then be restricted from doing so because it infringes on the other person&#8217;s privacy?</p> <h5>5. Personhood</h5> <p>The conception here is to protect &#8220;the integrity of personality,&#8221; and &#8220;often is used in conjunction&#8221; with other theories (30). Solove describes this as the theory underlying <em>Griswold v. Connecticut, Eisenstadt v. Baird, </em>and <em>Roe v. Wade.</em> It involves &#8220;choices central to personal dignity and autonomy&#8221; (31). I tend to agree with those that identify this right as more connected to liberty and autonomy than to privacy, but others (like <a href="https://www.amazon.com/Pursuit-Privacy-Ethics-Rise-Technology/dp/0801484111?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0801484111">Judith DeCew</a>) suggest that there is an &#8220;intuitive notion of privacy invoked in the constitutional privacy cases&#8221; (31). In any case, I find &#8220;personhood&#8221; to be too vague to be useful, and I also find that thinking of it in terms of autonomy is more revealing than conceptualizing it as privacy.</p> <h3>6. Intimacy</h3> <p>This perspective connects privacy with personal human relationships as well as &#8220;individual self-creation&#8221; (34). It can be difficult to define exactly what is &#8220;intimate,&#8221; except in terms of what &#8220;individuals want to reveal only to a few other people&#8221; or similar &#8220;in-practice&#8221; definitions (35). It does help to unify certain conceptions of privacy with autonomy, though: &#8220;abortion is a private decisions because it is &#8216;an intimate one'&#8221; (36).</p> <p>But again, this definitions tends to be too broad in scope. It is in many respects not much more useful than the term &#8220;privacy&#8221; itself (36). At the same time, it is overly limiting as a general theory because it is overly focused on interpersonal relationships alone.</p> <h4>So Now What?</h4> <p>Solove contends that the above theoretical conceptions &#8220;fail on their own terms&#8221; and &#8220;never achieve the goal of finding the common denominator&#8221; (38). So what should we do, then? His proposal is to dispense with &#8220;top-down&#8221; philosophy and to instead focus on the problems we face in four dimensions: method, generality, variability, and focus.</p> <p>His method is pluralistic and draws on Ludwig Wittgenstein&#8217;s <a href="http://en.wikipedia.org/wiki/Family_resemblance">family resemblances</a>: &#8220;privacy is not one thing, but a cluster of many distinct yet related things,&#8221; Solove writes (40). By generality, he means that he will pick a useful level of generality, one that is contextual and practical, not abstractly philosophical (40-41). He also acknowledges the variability of privacy and its historical and cultural contingency. He does not seek to provide a firmly fixed foundation for privacy, but does feel &#8220;it can still have sufficient stability while accommodating variability&#8221; (41). Finally, he limits his focus on privacy to privacy <em>problems</em>. Again, he seeks to avoid the abstract and philosophical and to stay with the particular and specific (41).</p> <p>Solove&#8217;s approach may not appeal to philosophers, but it has the advantage (and, perhaps, disadvantage) of being practical for lawyers and judges to deal with. I approve of his practical goals, and I think the methods he uses can be usefully extended to historical cases as well as contemporary ones.</p> "Narrative, free will, and legal responsibility: reading Cathy Gere reading Michael Gazzaniga" https://inpropriapersona.com/articles/narrative-free-will-and-legal-responsibility-reading-cathy-gere-reading-michael-gazzaniga/ Fri, 02 Dec 2011 01:02:15 +0000 d012dbff80dfc6c1af92cd0cafeb6966 <figure style="max-width: 176px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/72487092@N00/86999278"><img class="zemanta-img-inserted zemanta-img-configured " title="brains!" src="http://farm1.static.flickr.com/36/86999278_6e9832fb25_m.jpg" alt="brains!" width="176" height="176" /></a><figcaption class="wp-caption-text">Image by cloois via Flickr</figcaption></figure> <p>In my 1996 paper, <a href="http://ssrn.com/abstract=1556803">&#8220;But that Speaking Makes it So&#8221;: The Role of Narrative in the Formation of Community</a>, I wrote:</p> <blockquote><p>The creation of a narrative&#8211;the telling of a story&#8211;is a means of smoothing out the rough edges of existence, a means of transforming raw experience into the webs of significance which constitute culture. Indeed, narrative is such a basic component of culture, of humanity, that we never actually have access to &#8220;raw experience.&#8221; Nothing exists for us &#8220;but that speaking makes it so,&#8221; and it is this speaking which provides the coherent meaning in our lives, rather than leaving them a series of discontinuous, unrelated events.</p></blockquote> <p>I was speaking from a literary-critical point of view, but <a href="http://www.amazon.com/gp/product/0061906107/ref=as_li_ss_tl?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0061906107">Michael S. Gazzaniga&#8217;s brain research</a> suggests that this is actually how the brain deals with the world:<br /> <img style="border: none !important; margin: 0px !important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0061906107" alt="" width="1" height="1" border="0" /></p> <blockquote><p><a href="https://inpropriapersona.com/2011/12/narrative-free-will-and-legal-responsibility-reading-cathy-gere-reading-michael-gazzaniga/gazzaniga/" rel="attachment wp-att-5367"><img class="size-thumbnail wp-image-5367 alignleft" title="gazzaniga" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_762,w_762,x_131,y_0/h_150,w_150/v1514417238/gazzaniga_rmanhe.jpg" alt="" width="150" height="150" /></a>Gazzaniga suggests that one of the modules in the human brain should go under the name of the &#8220;Interpreter.&#8221; This system&#8211;located in the left hemisphere, along with the speech center&#8211;is what concocts a coherent narrative out of all the brain’s activity, and the annals of neuroscience are now full of bizarre neurological conditions and deft experiments that reveal this constant creative act at work. Of great importance to Gazzaniga&#8217;s argument are some oft-cited experiments purportedly demonstrating that conscious awareness of making a decision registers only after the brain has primed itself for that course of action, and sometimes even after the action has been performed. Gazzaniga calls this living in &#8220;a post-hoc world.&#8221; &#8230; According to Gazzaniga, the stories the Interpreter tells tend to be bravely forward-looking, all about steering the ship of fate into uncertain waters, equipped with free will and unity of purpose; but these parables of moral courage are no more than specious retrospective rationalizations for things we do automatically.</p></blockquote> <p>via Cathy Gere&#8217;s review in <a href="http://www.thenation.com/article/164646/atmospheric-disturbances-michael-gazzaniga?page=0,1">Atmospheric Disturbances: On Michael Gazzaniga | The Nation</a>.</p> <p><a href="https://inpropriapersona.com/2011/12/narrative-free-will-and-legal-responsibility-reading-cathy-gere-reading-michael-gazzaniga/thenation-cover1205-568-bw/" rel="attachment wp-att-5364"><img class="size-thumbnail wp-image-5364 alignright" title="thenation-cover1205-568-bw" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_568,w_568,x_0,y_95/h_150,w_150/v1514417241/thenation-cover1205-568-bw_qpdcu3.jpg" alt="" width="150" height="150" /></a>According to Gere, for Gazzaniga these &#8220;specious retrospective rationalizations&#8221; suggest a dis-unified consciousness that then calls into question the entire concept of free will: &#8220;If our brains act according to the causal laws governing all matter, in what sense can we be said to be free?&#8221; In legal terms, Gazzaniga suggests that this finding potentially undermines the criminal requirement of <em><a class="zem_slink" title="Mens rea" href="http://en.wikipedia.org/wiki/Mens_rea" rel="wikipedia">mens rea</a> </em>(the &#8220;guilty mind&#8221; element of most crimes): if our actions are in many situations <em>automatic, </em>and our explanations of them&#8211;our decision-making moral sense, as it were&#8211;only post-hoc, then &#8220;&#8216;My brain made me do it&#8217; threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.&#8221;</p> <p>Gere contests this conclusion by arguing that there is a difference between automatic reflexes&#8211;&#8220;primed by millenniums of natural selection&#8221;&#8211;and rational, deliberate consideration done before an act. She discusses the legal concept of &#8220;diminished responsibility&#8221;: the idea that, for example, children have a less-developed sense of moral thinking, and thus should not be held as responsible for their actions as an adult. Insanity&#8211;a complex area of interaction between medicine and law&#8211;is another site where the law recognizes that some people&#8211;but certainly not all people&#8211;lack the ability to properly consider their actions. (Although neither seems to mention it, this is pretty much the difference between murder &#8220;with malice aforethought&#8221; and manslaughter in American common law.)</p> <p>Gazzaniga gestures at one standard of legal insanity&#8211;the <a href="http://en.wikipedia.org/wiki/Irresistible_impulse">&#8220;policeman at the elbow&#8221; test</a>&#8211;but Gere says all he does is &#8220;wag an admonishing finger&#8221; at the notion. Gere suggests that Gazzaniga&#8217;s absolute standard is that one either has reason or not, and that one is thus either responsible or not for one&#8217;s actions. She argues that reality&#8211;and the law&#8211;is more complex in its evaluations that this, and that Gazzaniga fails to acknowledge this complexity.</p> <p>In criticizing Gazzaniga&#8217;s overly simplistic, and overly worried, notions about what his findings do for the idea of responsibility, Gere writes that &#8220;the concept [of responsibility] has been refined by witnesses, judges and juries ever since naturalistic accounts of mental illness began to gain traction, and it seems fairly robust as an intuition about justice.&#8221;</p> <p>Although I would agree with Gere in many respects, I am not convinced that the (American, at least) legal system has really developed a &#8220;fairly robust&#8221; (in the sense of having a common, stable agreement on the matter) sense of how responsibility should function. There are numerous definitions of &#8220;insanity&#8221; in various states, and the standards have gone back and forth as first doctors suggest grounds for diminished responsibility, and then the public reacts against a sense that criminals are &#8220;getting off too easily&#8221; by virtue of an insanity defense, and push for tightening the rules.</p> <figure style="max-width: 75px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:Jared_Loughner_USMS.jpg"><img class="zemanta-img-inserted zemanta-img-configured " title="English: Front view of federal mug shot of Jar..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/8/82/Jared_Loughner_USMS.jpg/75px-Jared_Loughner_USMS.jpg" alt="English: Front view of federal mug shot of Jar..." width="75" height="94" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> <p><a href="http://en.wikipedia.org/wiki/Jared_Lee_Loughner">Jared Lee Loughner</a>, for example, the accused shooter of numerous people in Arizona (including U.S. Representative Gabrielle Gifford), was declared &#8220;unfit to stand trial&#8221; in federal court due to schizophrenia. Under federal law (<a href="http://www.cbsnews.com/8301-504083_162-20028145-504083.html">revised due to popular anger</a> after John Hinckley, the man who tried to assassinate President Ronald Reagan, was found not guilty by reason of insanity in 1982), this does <em>not </em>mean he is somehow not guilty. He can be forced to take medication until he is deemed &#8220;fit,&#8221; and can then be tried. Arizona state law is different: in Arizona, even if Loughner is found to have been completely insane at the time of the killings (and therefore &#8220;not responsible&#8221; in at least some sense), he would first be committed to a mental institution if convicted, then transferred to prison if he recovers his sanity. There is no such thing in Arizona as &#8220;not guilty by reason of insanity&#8221; anymore.</p> <p>In the end, although I do not share Gazzaniga&#8217;s worry about the likelihood that his findings will result in reducing criminal liability, I am not convinced by Gere&#8217;s argument that the law has already established a more &#8220;robust&#8221; approach to the question. For me, the question of diminished responsibility, especially as a consequence of mental illness, is still a contested area of the law that is neither settled nor necessarily just.</p> <p>But despite this quibble, I do agree with Gere that there is more risk that the legal rules that establish diminished responsibility  are being eroded than is the fundamental concept of individual responsibility itself: &#8220;the concept of diminished responsibility is almost as much a pillar of the Anglo-American legal system as responsibility itself, and its actual erosion&#8211;as in the tabloid-stoked trend in Britain of trying minors as adults&#8211;is at least as troubling as its still-theoretical extension to all of us.&#8221;</p> <p>For me, at least, just because we construct a post-hoc narrative about an action does not mean we cannot still be responsible for that action, nor do I think there&#8217;s a real risk that the legal system will disagree.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=08dbdc71-0340-40ea-9f2e-ab196032f738" alt="" /></div> "Common law originalism: the common law was not so common" https://inpropriapersona.com/articles/common-law-originalism-the-common-law-was-not-so-common/ Mon, 28 Nov 2011 18:30:00 +0000 fed900329008c0e2c79c0d9218d1f3cc <figure style="max-width: 201px" class="wp-caption alignright"><a href="http://commons.wikimedia.org/wiki/File:SirWilliamBlackstone.jpg"><img class=" " title="Sir William Blackstone (1723-1780)" src="http://upload.wikimedia.org/wikipedia/commons/a/a6/SirWilliamBlackstone.jpg" alt="" width="201" height="256" /></a><figcaption class="wp-caption-text">Sir William Blackstone (1723-1780) via Wikimedia</figcaption></figure> <p>One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like <a class="zem_slink" title="Antonin Scalia" href="http://en.wikipedia.org/wiki/Antonin_Scalia" rel="wikipedia">Antonin Scalia</a>) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent&#8211;which itself was hardly either stable or fixed.</p> <p>In <a href="http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1021&amp;context=clsops_papers&amp;sei-redir=1&amp;referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dcommon%2520law%2520originalism%26source%3Dweb%26cd%3D2%26ved%3D0CCUQFjAB%26url%3Dhttp%253A%252F%252Fscholarship.law.cornell.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1021%2526context%253Dclsops_papers%26ei%3DONTSToKHAaqxiQLp48DiCg%26usg%3DAFQjCNH6YGsqUz1JX362LPozx73tuhmc4g%26sig2%3DTOARQ0mG6s9dGRG55bEjEw#search=%22common%20law%20originalism%22">Towards a Common Law Originalism</a>, Bernadette A. Meyler writes:</p> <blockquote><p>A certain self-consciousness, furthermore, characterized common law jurisprudence of the seventeenth and eighteenth centuries, a self-consciousness that undermines the view&#8211;expressed by Justice Scalia, among others&#8211;that we became aware judges made rather than discovered law only with the legal realists. &#8230; [But] this distinction may not entirely hold up; early common lawyers were hardly less disingenuous than their contemporary counterparts. (7)</p></blockquote> <p>Key in Meyler&#8217;s analysis are three points: (1) that the originalist approach rejects the <em>jurisprudence</em> of the common law, but endorses <a href="http://en.wikipedia.org/wiki/William_Blackstone">William Blackstone&#8217;s</a> summation of particular precepts of eighteenth-century common law; (2) the falsity of the claim that, at the time of the Founding, the common law was &#8220;uniform throughout the nation (rather than different from state to state)&#8221; (a quote <a href="https://inpropriapersona.com/2011/10/liberty-or-inflexibility-reading-antonin-scalia/">from Scalia</a>, although to be fair he is speaking of the prevailing view in the early 18th century, not necessarily <em>his</em> view of that time); and (3) common law jurists of the seventeenth and eighteenth century centuries&#8211;although perhaps purporting to &#8220;discover&#8221; rather than &#8220;create&#8221; law&#8211;in fact engaged in fairly self-conscious processes of law-making when participating in common law adjudication (8).</p> <h3>Blackstone</h3> <p>According to Meyler, Justice Scalia relies heavily on <a href="http://avalon.law.yale.edu/subject_menus/blackstone.asp">Blackstone&#8217;s Commentaries</a>:</p> <blockquote><p>Scalia consistently emphasizes eighteenth-century English common law, and the work of Blackstone, only secondarily alluding to any developments in the colonies or the states, and generally for the purpose of confirming or substantiating the applicability of Blackstone’s statements. (11; see, e.g., <a href="http://supreme.justia.com/us/518/415/">518 U.S. 415</a>, 452)</p></blockquote> <p>But the <em>Commentaries</em> were not &#8220;simply a synopsis of existing doctrine&#8221;: first, Blackstone intended them for a lay audience; second, &#8220;he aimed through them to show legislators the problems with the state of the common law so that they might be inclined to exercise their statutory authority in amending it&#8221; (12).</p> <p>Thomas Jefferson, for example, wrote that the <em>Commentaries </em>were &#8220;nothing more than an elegant digest of what [students] will have acquired from the real fountains of the law&#8221; (18; &#8220;Letter to Judge Tyler&#8221;). Additionally, in the 1760s, &#8220;the common law itself was on the wane, and parliamentary supremacy had been definitively established&#8221; (12). In relation to the United States, Blackstone wrote at a time when the American colonies had already substantially received English common law: &#8220;as a result, Blackstone’s vision of the relationship between statutory and common law may not accurately represent the indigenous American tradition&#8221; (12).</p> <h3>The Uniformity of the Common Law</h3> <p>Justice Scalia has emphasized that specific common law meanings are generally identifiable:</p> <blockquote><p>[Scalia] established a fairly strong presumption of common law unity, suggesting that litigants must argue strenuously for the proposition that a single common law meaning did not inhere in a term or phrase because of divergent or conflicting strands &#8230; This emphasis on a singular original meaning is correlated with an account of the common law at the time of the Founding as a monolithic body unaffected by statutory developments. (13-14)</p></blockquote> <p>Meyler goes on to explain that &#8220;writings from the Founding era and materials from the states in the period following ratification demonstrate that the common law occupied a disunified field  in late eighteenth century&#8221; (17). In other words, there was <em>not </em>a singular understanding of the law; the so-called &#8220;common&#8221; law was not entirely held in common at all. Thomas Jefferson, John Adams, and James Madison all critically discussed the common law of their era (18). Jefferson, for example, debated whether Christianity was a part of the common law, and maintained that it was not (19). Adams argued about the temporality of the common law, and &#8220;insisted on the return to an early seventeenth-century version of the common law, that in place before the accession of Charles I&#8221; (21). He also &#8220;resisted the notions that the common law had been introduced wholesale into America,&#8221; and instead argued that only the common law that was adapted to the American context had been imported (22).</p> <p>James Madison wrote a report on the basis of the common law in 1799-80, and asked several key questions that are also applicable to any uniform understanding of Constitutional meaning through reliance on the common law:</p> <ol> <li>Is it to be the common law with or without the British statutes?</li> <li>Is it to be the date of the eldest or the youngest of the Colonies? Or are the dates to be thrown together and a medium deduced? Or is our independence to be taken for the date?</li> <li>Is, again, regard to be had to the various changes in the common law made by the local codes of America? (25)</li> </ol> <p>While Madison went on to reject the idea of federal common law in 1824, he did endorse the necessity of interpreting the Constitution on the basis of &#8220;the Common law because it borrows therefrom terms which must be explained by Com. Law authorities&#8221; (25). For Madison, the key was that the common law helped explain concepts and terms. It provided &#8220;an interpretive tool for understanding constitutional phrases, [but] it could not &#8230; entirely dictate the meaning of many of the Constitution&#8217;s clauses&#8221; (26).</p> <p>Additionally, the laws&#8211;even the &#8220;common laws&#8221;&#8211;differed between various colonies and between the colonies and England (27). There were even attempts to abrogate the &#8220;Common Law of England&#8221; on several grounds, including that the &#8220;the common law did not boast uniformity even in England&#8221; and the &#8220;disparity &#8230; between American and English versions of the common law&#8221; (28).</p> <p>In effect, the common law provided useful background information to help define and understand terms and meanings, but it was not fixed enough to provide a firm foundation for a uniform, consistent interpretation of the Constitution.</p> <h3>Sophisticated Common Lawyers</h3> <p>Common lawyers at the in the eighteenth century were aware of &#8220;the mutability of common law&#8221;:</p> <blockquote><p>To achieve a thoroughgoing originalism, it is thus necessary to acknowledge that the flexibility of the common law method was not unknown to the Founding generation and instead provided the backdrop for the U.S. Constitution itself (33).</p></blockquote> <p>Key eighteenth century legal theorists&#8211;Coke, Hale, and Blackstone&#8211;based its authority both on reference to natural or universal law, as well as the historicity and popular acceptance of common law (36). Thus, precedents helps evaluate particular problems, but it takes interpretation in evaluating specific questions (40).</p> <p>Suggesting the importance of contemporary acceptance in the authority of the common law, and not its universality, the English historian Matthew Hale &#8220;insisted that the continued acceptance rather than the origin of the common law was essential in endowing it with authority&#8221; (41):</p> <blockquote><p>This release from grounding the authority of the common law in its immemoriality enabled Hale to explicitly acknowledge legal change and to write the first account of the common law that openly presented itself as a history and spoke of the common law&#8217;s extraordinary emergencies.</p></blockquote> <p>If, in originalist fashion, one goes back to look at the understandings of the Founders, the result is not fuzzy view into a fixed understanding of the common law, but rather a fuzzy view into an equally fuzzy, quite sophisticated and rather (post)-modern view of the common law as mutable through time and dependent on popular acceptance for at least part of its authority.</p> "Privacy as secrecy and privacy as autonomy" https://inpropriapersona.com/articles/privacy-as-secrecy-and-privacy-as-autonomy/ Sun, 27 Nov 2011 22:34:42 +0000 c5db8541e4a89dc70e8c68795b06e3c5 <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/restricteddata/6322465061"><img title="Visible downgrading: privacy and secrecy" src="http://farm7.staticflickr.com/6111/6322465061_ed9c139919_m.jpg" alt="" width="240" height="180" /></a><figcaption class="wp-caption-text">&quot;Visible downgrading&quot; by Alex Wellerstein. CC BY 2.0 license.</figcaption></figure> <p>The concept of &#8220;privacy&#8221;&#8211;as in &#8220;the <a class="zem_slink" title="Privacy law" href="http://en.wikipedia.org/wiki/Privacy_law" rel="wikipedia">right to privacy</a>&#8220;&#8211;can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in <a href="https://inpropriapersona.com/2011/02/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">perceptions of privacy in the 19th century</a>, where the legal focus seemed to be more on &#8220;<a href="https://inpropriapersona.com/2011/04/confidentiality-vs-privacy/">confidentiality</a>&#8221; than what we have come to understand as &#8220;privacy&#8221; today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).</p> <p><strong>Autonomy</strong></p> <p>This changed with the 1890 publication of the Samuel Warren and Louis Brandeis law review article called &#8220;<a href="http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html">The Right to Privacy</a>.&#8221; In this article, Warren and Brandeis are actually concerned with something more akin to <em>autonomy</em> than <em>secrecy</em>: &#8220;from Greek <em>autonomia</em>, from <em>autonomos</em>  &#8216;having its own laws,&#8217; from <em>autos</em> &#8216;self&#8217; + <em>nomos</em> &#8216;law'&#8221; (from Apple&#8217;s dictionary app).  That is, allowing people to control their own self-identity, rather than allowing it to be exploited by (for example) <a href="http://en.wikipedia.org/wiki/Yellow_journalism">yellow journalists</a>. Secrecy, on the other hand, is about keeping something away from the knowledge of others. The concepts are related, but distinct and different, and require different legal approaches.</p> <figure style="max-width: 240px" class="wp-caption alignleft"><a href="http://www.flickr.com/photos/sazeod/251293618/"><img title="Paparazzi" src="http://farm1.staticflickr.com/89/251293618_329c07e26a_m.jpg" alt="" width="240" height="162" /></a><figcaption class="wp-caption-text">&quot;Paparazzi&quot; by Clément Seifert. CC BY-NC-SA 2.0 licensed.</figcaption></figure> <p>The Warren and Brandeis article advocated for the protection of a person&#8217;s &#8220;inviolate personality&#8221; and the &#8220;fundamental right to be let alone.&#8221; They were not concerned with illegal government searches of private residences&#8211;or even the trespasses of journalists in private land&#8211;but rather with the <em>publication</em> and <em>dissemination</em> of information that, they believed, most properly belonged to a person. In other words, their approach was akin to a broad notion of copyright or &#8220;<a class="zem_slink" title="Personality rights" href="http://en.wikipedia.org/wiki/Personality_rights" rel="wikipedia">right of publicity</a>,&#8221; because it proposed allowing people to control the publication of their own likeness (photos of themselves, for example). Such control was based on a kind of &#8220;moral right,&#8221; in a sense, to <em>own</em> one&#8217;s own self, or to be &#8220;autonomous.&#8221; The implications of a right to control the publication of information about one&#8217;s self has the <a href="https://inpropriapersona.com/2011/10/thinking-about-privacy-and-the-first-amendment/">potential to conflict with the First Amendment </a>rights of others in a way that a right to <em>privacy as secrecy</em> might not.</p> <p>In 1928, now a Supreme Court justice, Brandeis wrote in dissent in <a href="http://en.wikipedia.org/wiki/Olmstead_v._United_States">Olmstead v. U.S.</a> that the right to privacy was the &#8220;right to be left alone&#8211;the most comprehensive of rights, and the right most valued by a free people.&#8221; Cornell&#8217;s Legal Information Institute explains that the right to privacy has thus &#8220;<a href="http://topics.law.cornell.edu/wex/Privacy">developed into a liberty of personal autonomy protected by the 14th amendment</a>.&#8221; The focus on a &#8220;right to privacy&#8221; as &#8220;a liberty of personal autonomy&#8221; is why the <a class="zem_slink" title="Fourteenth Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution" rel="wikipedia">Fourteenth Amendment</a> (due process and equal protection), and not the <a href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> (search and seizure), is often so important today when discussing privacy, and is the constitutional underpinning for key decisions like <a class="zem_slink" title="Roe v. Wade" href="http://en.wikipedia.org/wiki/Roe_v._Wade" rel="wikipedia">Roe v. Wade</a>.</p> <p><strong>Secrecy</strong></p> <figure style="max-width: 180px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/28382721@N03/2655381446"><img title="Completely Tapped: privacy and secrecy" src="http://farm4.static.flickr.com/3097/2655381446_4dd9b6b58d_m.jpg" alt="" width="180" height="240" /></a><figcaption class="wp-caption-text">&quot;Completely Tapped&quot; by Byung Kyu Park. CC BY-SA 2.0 license.</figcaption></figure> <p>A right to secrecy is most closely aligned with the Fourth Amendment (search and seizure) and with trespass, and less with the &#8220;<a href="http://legal-dictionary.thefreedictionary.com/penumbral">penumbra</a>&#8221; of due process or equal protection. A right to keep things secret is <em>also </em>about &#8220;inviolability&#8221; in some sense. Thus, in <em>Olmstead</em>, Brandeis could argue that a wiretap could intrude on a &#8220;right to privacy&#8221;&#8211;the &#8220;right to be let alone&#8221;&#8211;as part of a violation of the Fourth Amendment, even though no publication or dissemination had necessarily occurred. A right to autonomy, to protect one&#8217;s <em>self</em>, might well require a right to secrecy in a case involving wiretaps, but it has less value in protecting abortion rights, for example, where the real question is one of self-determination, <em>not </em>secrecy.</p> <p>Approaching a right to secrecy legally, one might prosecute an overzealous journalist <em>not </em>for the publication of embarrassing information&#8211;and certainly not for photos taken in public places&#8211;but for a trespass involved in obtaining private letters. In some cases, the First Amendment might still be implicated (think of the Pentagon Papers), but the restraint on speech is much weaker when what is being restricted is <em>not directly </em>the publication of materials, but rather the <em>manner in which they were obtained.</em></p> <p>In this sense, then, data privacy laws&#8211;which <a href="http://volokh.com/">Eugene Volokh</a>, for example, has explained are in many ways <a href="https://inpropriapersona.com/2011/11/neil-richards-on-reconciling-data-privacy-and-the-first-amendment/">in conflict with the First Amendment</a>&#8211;might be more readily disentangled from that constitutional problem if they are realigned with traditional laws against <em>trespass</em>. The law, then, would not be focused on <em>preventing publication</em> (although that might be an issue still, and might still have First Amendment implications), but rather on <em>punishing transgressions or trespasses.</em></p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=25f1e618-292a-4d81-bc10-1fc9a18700ef" alt="" /></div> "On “The Role of Technology in Human Affairs”" https://inpropriapersona.com/articles/on-the-role-of-technology-in-human-affairs/ Mon, 21 Nov 2011 01:51:26 +0000 d377334ae239871444b41497e2b6a1a5 <figure id="attachment_5239" style="max-width: 300px" class="wp-caption alignright"><a href="https://inpropriapersona.com/2011/11/on-the-role-of-technology-in-human-affairs/wealth_of_networks/" rel="attachment wp-att-5239"><img class="size-medium wp-image-5239 " title="The Wealth of Networks" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514417248/wealth_of_networks_qlapzl.jpg" alt="" width="300" height="300" /></a><figcaption class="wp-caption-text">The Wealth of Networks by Yochai Benkler</figcaption></figure> <p>In <em><a class="zem_slink" title="The Wealth of Networks: How Social Production Transforms Markets and Freedom" href="http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0300125771%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0300125771" rel="amazon">The Wealth of Networks: How Social Production Transforms Markets and Freedom</a></em>, Yochai Benkler discusses his vision of the role of technology in social change. He rejects an overly deterministic vision of technology (which he connects with Lewis Mumford and Marshall McLuhan), but also rejects a view of technology as immaterial to a society&#8217;s direction:</p> <blockquote><p>A view of technologies as &#8220;tools that happen, more or less, to be there, and are employed in any given society in a pattern that depends only on what that society and culture makes of them is too constrained. A society that has no wheel and no writing has certain limits on what it can do.&#8221; (17)</p></blockquote> <p>Instead, he adopts a &#8220;simple&#8221; idea that is &#8220;distinct from a naive determinism&#8221;:</p> <blockquote><p>Different technologies make different kinds of human action and interaction easier or harder to perform. All other things being equal, things that are easier to do are more likely to be done, and things that are harder to do are less likely to be done. All other things are never equal. That is why technological determinism in the strict sense&#8211;if you have technology &#8220;t,&#8221; you should expect social structure or relation &#8220;s&#8221; to emerge&#8211;is false. (17)</p></blockquote> <p>To illustrate the point, he describes the different impacts that new ocean-going technologies had on Spain or Portugal (their land ambitions were curtailed by strong neighbors) and China (which focused inland). He also notes how the printing press impacted Protestant countries (where individual reading of the Bible was encouraged) differently than Catholic countries (where &#8220;where religion discouraged individual, unmediated interaction with texts, like France and Spain&#8221;).</p> <p>He summarizes his position by saying the following:</p> <blockquote><p>Neither deterministic nor wholly malleable, technology sets some parameters of individual and social action. It can make some actions, relationships, organizations, and institutions easier to pursue, and others harder. (17)</p></blockquote> <p>In regards to modern networking technologies (like the Internet), he warns:</p> <blockquote><p>The same technologies of networked computers can be adopted in very different patterns. There is no guarantee that networked information technology will lead to the improvements in innovation, freedom, and justice that I suggest are possible. (18)</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=99d6cb50-9fdc-421f-abdd-58d05ecfc90b" alt="" /></div> </blockquote> "Freedom of speech in the “Second Gilded Age”" https://inpropriapersona.com/articles/freedom-of-speech-in-the-second-gilded-age/ Mon, 21 Nov 2011 00:42:39 +0000 8bb085f0dadbacc451155850af06eb06 <figure style="max-width: 160px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/knightfoundation/3471163641/"><img title="Jack M. Balkin" src="http://farm4.staticflickr.com/3623/3471163641_4bfe698d88_m.jpg" alt="" width="160" height="240" /></a><figcaption class="wp-caption-text">Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.</figcaption></figure> <p>In &#8220;<a href="http://www.yale.edu/lawweb/jbalkin/writings.htm#digitalspeech">Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society</a>,&#8221; Jack Balkin (of the blog <a href="http://balkin.blogspot.com/">Balkinization</a>) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:</p> <blockquote><p>Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual <a class="zem_slink" title="Property" href="http://en.wikipedia.org/wiki/Property" rel="wikipedia">property rights</a>. &#8230; Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)</p></blockquote> <p>Balkin sees this as reminiscent of a similar appropriation during the first <a href="http://en.wikipedia.org/wiki/Gilded_Age">Gilded Age</a> of the 1870s and 1880s especially, when the &#8220;robber barons&#8221; grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the &#8220;freedom of contract,&#8221; and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts&#8211;drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day&#8211;struck it down two years later (in <em><a title="Hammer v. Dagenhart" href="http://en.wikipedia.org/wiki/Hammer_v._Dagenhart">Hammer v. Dagenhart</a></em>).</p> <p>Bilkin writes:</p> <blockquote><p>In what Clinton Rossiter called the &#8220;Great Train Robbery of Intellectual History,&#8221; laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism&#8211;liberty, opportunity, progress, and individualism&#8211;and gave them an economic reinterpretation that served corporate interests. &#8230; By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24-25)</p></blockquote> <p>Today, Bilkin said, we&#8217;re seeing a similar move: &#8220;The right to speak has been recast as a right to be free from business regulation&#8221; (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the <a href="https://inpropriapersona.com/2010/11/a-quick-history-of-the-changing-lengths-of-copyright-protection/">original fourteen years of 1790</a>. ) They have also argued that networks should be freer than ever of government regulation, because such regulations&#8211;passed in the name of protecting the <em>public&#8217;s </em>speech&#8211;infringes on <em>their </em>freedom of speech.</p> <p><em>(Interesting note: this move&#8211;discussed in Balkin&#8217;s 2004 article&#8211;is very similar to what happened with corporate money and speech in the 2010 <a href="http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission">Citizen&#8217;s United decision</a>.)</em></p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=69d2850f-f4ca-4f93-853f-1c7bd01f9fad" alt="" /></div> "WordPress under Nginx and Varnish with W3TC" https://inpropriapersona.com/news/2011/wordpress-under-nginx-and-varnish-with-w3tc/ Sat, 12 Nov 2011 01:27:13 +0000 b9c606c01f84c6e0e734396eafcd08f5 <p><a href="https://inpropriapersona.com/2011/11/wordpress-under-nginx-and-varnish-with-w3tc/top-pulaski/" rel="attachment wp-att-4691"><img class="alignright size-medium wp-image-4691" title="WordPress under Nginx and Varnish with W3TC" src="http://res.cloudinary.com/krisnelson/image/upload/h_230,w_300/v1514417254/top-pulaski_p9kudo.jpg" alt="" width="300" height="229" /></a>When it comes to my personal Internet presence, I am an inveterate tinkerer. I like to experiment and I like to run things <em>my way. </em>(This is in contrast to my professional recommendations as a consultant, where I like conservative and tested.)</p> <p>As such, despite having no problems with my previous host (<a href="http://laughingsquid.us/" target="_blank">Laughing Squid</a>, which I still recommend), I decided to switch to a Virtual Private Server (VPS) so that I could have more flexibility and control over my server environment. I selected <a href="http://www.vmstormvps.com/" target="_blank">VM Storm</a> based on a review of  <a href="http://www.lowendbox.com/blog/vmstormvps-5-97-256mb-vmware-vps-in-state-college-pa/" target="_blank">“low-end” VPS providers</a> (since this is my personal tinkering platform I don’t need to pay extra for a high-end name). I then added <a class="zem_slink" title="Nginx" href="http://www.nginx.org/" rel="homepage">Nginx</a> as my Web server, Varnish as a front-end cache, <a class="zem_slink" title="WordPress" href="http://wordpress.org" rel="homepage">WordPress</a> for blogging, and W3TC as a WordPress performance enhancer.</p> <p><strong>The Virtual Private Server</strong></p> <p>Remember that with a basic VPS, no one administers the system for you (unless you pay extra, of course). You need to make your own size estimates, then install and configure your Web server and everything else (the OS itself was installed by the provider). This, of course, is exactly what I was looking for, since I wanted to experiment.</p> <p>While I probably could have made it work with an even more compact environment, I went with 512 MB of memory to give me some breathing room. I decided on <a href="http://www.ubuntu.com/" target="_blank">Ubuntu</a> 11.10 Server because I’m familiar and comfortable with Ubuntu, and because there are lots of online Ubuntu resources and help available.</p> <p><strong>The Web Server</strong></p> <p>I’m most familiar with Apache, a free, open-source, incredibly flexible and powerful Web server. But since I was interested in experimenting, I decided to try an alternative: <a href="http://nginx.org/en/" target="_blank">Nginx</a>(“engine x”), a fast and compact HTTP server that now powers sites like <a href="http://wordpress.com/" target="_blank">WordPress.com</a>and <a href="http://cloudflare.com/" target="_blank">CloudFlare</a>. It’s known for its resource efficiency and speed, so it’s a perfect choice for smaller VPS setups (and it too is open source and free).</p> <p>(Note: I thought about <a href="http://www.lighttpd.net/" target="_blank">Lighttpd</a>, another fast and compact Web server, but Nginx proved be easier for me to get going the way I liked.)</p> <p><strong>The Front-End Cache</strong></p> <p>Nginx is fast, but I wanted more. So I put <a href="http://www.varnish-cache.org/" target="_blank">Varnish</a> in front of Nginx. What’s Varnish?</p> <blockquote><p>Varnish Cache is an open source, state of the art web application accelerator. You install it on your web server and it makes your website fly.</p></blockquote> <p>Basically, it’s a server-side caching proxy. It listens for HTTP requests, serves them <em>really fast</em> if they’re in its cache already, or forwards the request to Nginx if they’re not. Want to survive a <a href="http://en.wikipedia.org/wiki/Slashdot_effect" target="_blank">Slashdotting</a>? Use Varnish. (And then add <a href="http://cloudflare.com/" target="_blank">CloudFlare</a> for good measure!)</p> <p><strong>The Database</strong></p> <p>I went with <a href="http://www.mysql.com/" target="_blank">MySQL</a> (of course). It works. I added <a href="http://www.phpmyadmin.net/" target="_blank">phpMyAdmin</a> to help administer it, and put that behind Nginx running SSL with a <a href="http://www.justinsamuel.com/2006/03/11/howto-create-a-self-signed-wildcard-ssl-certificate/" target="_blank">self-signed certificate</a>. I could have bought an SSL cert, but what’s the point? I know who I am, and no one else needs SSL access to my install anyway. (I’m not selling stuff through my site.)</p> <p><strong>The Software</strong></p> <p>While I could have experimented with other solutions for blogging, I wanted to stick with<a href="http://wordpress.org/" target="_blank">WordPress</a>. It’s flexible, extensible, and nice to work with. It isn’t always the fastest or most optimized thing out there, but that’s what Nginx and Varnish are for!</p> <p>WordPress was really designed for a LAMP environment: Linux, Apache, MySQL, and PHP. So replacing Apache with Nginx had the potential to create some challenges–which it did! But fortunately, Nginx is an increasingly popular choice, and one of the most powerful WordPress plugins out there (W3TC–<a href="http://wordpress.org/extend/plugins/w3-total-cache/" target="_blank">W3 Total Cache</a>) has added support for it, which made everything easier.</p> <p><strong>W3 Total Cache</strong></p> <p><a href="http://wordpress.org/extend/plugins/w3-total-cache/" target="_blank">W3TC</a> is more than a cache. It bills itself as a “performance framework,” and although I often prefer the Unix “small-tool” philosophy, W3TC really shines. To be honest, it’s options for performance enhancements encouraged me to think about using a VPS in the first place, just so I could play with them. It handles disk and database or object caching (using memcache or PHP APC), content-delivery networks (like <a href="http://aws.amazon.com/cloudfront/" target="_blank">Amazon CloudFront</a>), and even <a class="zem_slink" title="Varnish (software)" href="http://en.wikipedia.org/wiki/Varnish_%28software%29" rel="wikipedia">Varnish cache</a> purging.</p> <p><strong>Resources and How-To Guides</strong></p> <ul> <li><a href="http://wiki.nginx.org/WordPress" target="_blank">WordPress on Nginx</a> (nginx.org)</li> <li><a href="http://olex.openlogic.com/wazi/2011/supercharge-wordpress-part-2/" target="_blank">Supercharge WordPress</a> (openlogic.com)</li> <li><a href="http://nanotux.com/blog/the-ultimate-server/" target="_blank">How to build the ultimate Ubuntu/Lighttpd/PHP/MySQL server, and keep it running</a>(nanotux.com)</li> <li><a href="https://github.com/timwhitlock/php-varnish/blob/master/wordpress-plugin/" target="_blank">Sample Varnish config for WordPress</a> (github.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"></div> "Reading William B. Stoebeck’s “On the Reception of English Common Law in the American Colonies”" https://inpropriapersona.com/articles/reading-william-b-stoebecks-on-the-reception-of-english-common-law-in-the-american-colonies/ Sat, 12 Nov 2011 01:22:07 +0000 6d5aceec17d8638586f649a4ee5c048a <p><a href="https://inpropriapersona.com/2011/11/reading-william-b-stoebeck%e2%80%99s-on-the-reception-of-english-common-law-in-the-american-colonies/reception-english-law/" rel="attachment wp-att-4689"><img class="alignright size-medium wp-image-4689" title="reception-english-law" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514417252/reception-english-law_pem7mi.jpg" alt="" width="300" height="300" /></a>In 1968, William B. Stoebeck published “<a href="http://scholarship.law.wm.edu/wmlr/vol10/iss2/7" target="_blank">On the Reception of English Common Law in the American Colonies</a>,” a discussion of how and when England’s common law came into use in the American colonies. In the article, he first discusses three “standard theories”:</p> <ol> <li>that English common law was in force in the colonies from the time of the first English settlement;</li> <li>that, quoting Paul S. Reinsch, the colonies “underwent ‘a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of English common law’”;</li> <li>or instead, citing Julius Goebel, that the colonists instead adopted the “customary law of the local courts the colonists had known in England” and <em>not</em> the common law “of the king’s courts at Westminster.”</li> </ol> <p>Before discussing the historical record, Stoebeck first bookends the problem by noting that, first, “there was no common law in America on 12 May 1607″ and, second, there are case reports and so on available post-Revolution that provide solid insight on where “common-law reception … must have stood on Independence Day” (395-96).</p> <h3>A lack of lawyers</h3> <p>In the 17th century, there was a paucity of lawyers in the colonies. There were very few English-trained lawyers in Massachussetts, only three were known to be in Connecticut, one in Maine, thirty-some-odd in Virginia, two in Maryland, and none anywhere else (405). With no law schools, no real bar, and no real apprenticeship possibilities, there were likely few, if any, American-trained colonial lawyers either. <a href="https://inpropriapersona.com/2011/09/early-lawyering-in-colonial-america/" target="_blank">Kermit Hall’s 1989 book reinforces this</a>:</p> <blockquote><p>Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the <a title="Fundamental Constitutions of Carolina" href="http://en.wikipedia.org/wiki/Fundamental_Constitutions_of_Carolina" rel="wikipedia" target="_blank">Fundamental Constitutions</a>of the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. (Hall 21-22)</p></blockquote> <p>As a result of the limited availability of trained lawyers, Stoebeck suggests that it’s unlikely that the colonists would have adopted or used the complex English common-law system in anything other than a limited manner.</p> <h3>What law?</h3> <p>Even when charters of the new colonies referenced the laws of England, Stoebeck points out, there is an additional problem: <em>which</em> laws of England? According to <a title="Edward Coke" href="http://en.wikipedia.org/wiki/Edward_Coke" rel="wikipedia" target="_blank">Edward Coke</a>, a 17th-century jurist, lists fourteen types of law in England: “the law of the crown, law of parliament, law of nature, statute law, customs, ecclesiastical law, etc., of which the ‘common law of England’ was only one” (397).</p> <p>Even contemporary discussions of the “common law” in the 17th century often did not clearly distinguish what was meant. Colonists, for example, would clamor for the protections of the “common law of England” when resisting unpopular or autocratic actions by English or colonial governments. They were not, however, advocating for the “king’s law,” nor for the common-law writ system, but rather for what we might consider today to be Constitutional protections, like a right to a trial by jury (410).</p> <h3>Every colony is different</h3> <p>Stoebeck explores the complexities of the various colonies, each of which has a different foundation story and a different relationship with England. Virginia, for example, was founded by an English corporation and intended to benefit investors back in England, while Massachusetts was founded by religious dissidents who often preferred Biblical precedent. As a result, it’s hard to speak of a single “reception” in America.</p> <h3>1700 is a turning point</h3> <p>Nonetheless, Stoebeck suggests that the turn of the eighteenth century marked a turning point for all the colonies (407, 410). The 1696 Navigation Act, for example, imposed much more clearly English legal control over admiralty jurisdiction in the colonies (408). The Privy Council began examining court procedures and the Council of Trade and Plantations began to exert pressure to codify colonial laws (409). (I should note, too, that the first Virginia Slave Code dates from 1705, and other slave codes were enacted from the 1660s into the early 1700s.)</p> <h3>Conclusions</h3> <p>Stoebeck clearly rejects the first theory of <a title="Adoption" href="http://en.wikipedia.org/wiki/Adoption" rel="wikipedia" target="_blank">common-law adoption</a> (that it was applied from the moment of settlement), since most of his historical discussions involve the complex ways in which English common law<em> was not</em> in use in the colonies before the Revolution. But beyond that, his account explores a variety of paths that each different colony took. Some more quickly adopted English practices than others, and all began to do so more at the turn of the 18th century, but none fully adopted English practice until late in the century (if they even did then). Some did apply more local custom and practice as used at home in England, others used indigenous procedures and approaches, and all codified distinct statutory laws.</p> <p>But whatever their path, by the end of the 18th century the colonies–now the United States–explicitly adopted English common law (even if what that was, exactly, wasn’t always clear) through statute or in their Constitutions, and jurists used English precedent into the 19th century (and occasionally today, too).</p> <p>Stoebeck ends his account by saying,</p> <blockquote><p>The reception process had been very much an indigenous affair, for the English home government had acted only haltingly to impose adoption of the common law.</p></blockquote> <p>And, finally, he says,</p> <blockquote><p>The post-Revolutionary evidence makes it nigh conclusive that Chief Justice Daniel Horsmanden spoke not only  for New York but of colonial America when he said in 1765 that the court applied the common law ‘in the main.’”</p></blockquote> <p>Thus, the end of the reception story is “secure,” even if the story of the process “has some missing planks.”</p> "Copyright and authorship: reading Thomas Streeter’s Selling the Air" https://inpropriapersona.com/articles/copyright-and-authorship-reading-thomas-streeters-selling-the-air/ Thu, 10 Nov 2011 01:29:32 +0000 58ad7b7ae2a60dec67db1bb6432c1f75 <p><a href="https://inpropriapersona.com/2011/11/copyright-and-authorship-reading-thomas-streeters-selling-the-air/selling-the-air/" rel="attachment wp-att-4690"><img class="alignright size-medium wp-image-4690" title="selling-the-air" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_195/v1514417256/selling-the-air_vxm25c.jpg" alt="" width="195" height="300" /></a>In <a href="http://www.amazon.com/gp/product/0226777227/ref=as_li_ss_tl?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=217145&amp;creative=399369&amp;creativeASIN=0226777227" target="_blank">Selling the Air: A Critique of the Policy of Commercial Broadcasting in the United States</a>, Thomas Streeter writes:</p> <blockquote><p>Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?</p></blockquote> <p>He then explains that, at least in the Western–and perhaps especially in the American–tradition, “copyright is the enactment of the dream that the disparate goals and values of individual creative freedom, commerce, and informational dissemination can be reconciled in law.”</p> <p>In the United States, copyright has always served a functional purpose:</p> <blockquote><p>To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries  (<a title="Copyright Clause" href="http://en.wikipedia.org/wiki/Copyright_Clause" rel="wikipedia" target="_blank">Article I, Section 8, Clause 8 of the United States Constitution</a>).</p></blockquote> <p>Drawing on this, Streeter writes that:</p> <blockquote><p>From the beginning, therefore, copyright was understood more in functional than in formal or moral terms; the emphasis was more on copyright’s role in encouraging the distribution of culture and information than on its inherent justice.</p></blockquote> <div> <p>But even though copyright is functional, and emerged in tandem with the spread of new technologies like the printing press (and later, radio, television, the Internet, etc.), we have maintained a very <a href="http://en.wikipedia.org/wiki/Romanticism" target="_blank">Romantic</a> notion of the authorial genius-creator:</p> </div> <blockquote><p>American law depends on conceptual distinctions, particularly originality and the distinction between an idea and its expression, that are derived from the romantic image of authorship as an act of original creation whose uniqueness springs from and is defined in terms of the irreducible individuality of the writer.</p></blockquote> <p>But, Streeter points out, modern broadcast mediums–especially television, but also music, movies, and more–<em>do not </em>have individual “authors,” and yet our legal approaches to copyright still assume some notion of an individual author or creator.</p> <p>One way the law has handled this is through the fictional “corporate person” who now owns copyrights and substitutes for individual creative humans. These large bureaucratic institutions now “create” most modern works, but still argue that consumers have a moral right to compensate them for their creation in a way that tends to invoke romantic authorship–and breaks down when the “creator” is a large multinational corporation.</p> <p>Corporations have responded to create bureaucratic enforcement mechanisms, so-called “copyright collectives,” such as <a title="American Society of Composers, Authors and Publishers" href="http://en.wikipedia.org/wiki/American_Society_of_Composers%2C_Authors_and_Publishers" rel="wikipedia" target="_blank">ASCAP</a> and <a title="Broadcast Music Incorporated" href="http://en.wikipedia.org/wiki/Broadcast_Music_Incorporated" rel="wikipedia" target="_blank">BMI</a>. These groups create licensing arrangements that only roughly correspond to “actual” use or “actual” creators (and often strike me as rather reminiscent of a protection racket…).</p> <p>New technologies that have emerged after Streeter’s book hold the potential for revolutionizing this relationship, although Amazon, Netflix, Hulu, Spotify, et. al. fundamentally do <em>nothing</em> about the problem of corporate content creation. They do, however, re-enable the possibility of individual creators (if such a thing really exists…) to escape the old bureaucratic confines and to more directly connect with consumers via mediators that can reduce the communications and collections overhead.</p> <p>So is this really a revolution? Perhaps–but as I said, it does nothing about the major point of Streeter that much of today’s media <em>has no individual creator at all</em>. In such a case, these new technologies merely permit more efficient collection, cutting back on the number of “middlemen,” but don’t otherwise revolutionize anything at all.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3186ec81-c388-4b1d-b526-67aca20763c8" alt="" /></div> "Neil Richards on “Reconciling Data Privacy and the First Amendment”" https://inpropriapersona.com/articles/neil-richards-on-reconciling-data-privacy-and-the-first-amendment/ Wed, 02 Nov 2011 01:19:04 +0000 b2459860c1c9c147a1592b1baf8c23e8 <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/toxi/128026133/"><img title="&quot;anti identity theft campaign&quot; by Flickr user Karsten Schmidt, used under a CC BY-NC-ND license. " src="http://farm1.static.flickr.com/46/128026133_8cdbc9b069_m.jpg" alt="" width="240" height="180" /></a><figcaption class="wp-caption-text">By Karsten Schmidt</figcaption></figure> <p>In &#8220;<a href="https://inpropriapersona.com/2011/10/thinking-about-privacy-and-the-first-amendment/">Thinking about privacy and the First Amendment</a>,&#8221; I discussed <a href="http://volokh.com">Eugene Volokh</a>&#8216;s critique of privacy laws in relation to  <a title="Samuel D. Warren" href="http://en.wikipedia.org/wiki/Samuel_D._Warren" rel="wikipedia">Samuel D. Warren</a> and <a title="Louis Brandeis" href="http://en.wikipedia.org/wiki/Louis_Brandeis" rel="wikipedia">Louis D. Brandeis</a>’s 1890 law review arti­cle, “<a href="http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html">The Right to Privacy</a>.” In “Cyberspace and Privacy: A New Legal Paradigm?,” Volokh argues that &#8220;the right to information privacy&#8211;my right to control your communication of personally identifiable information about me&#8211;is a right to have the government stop you from speaking about me.&#8221;</p> <p>In &#8220;<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=598370">Reconciling Data Privacy and the First Amendment</a>,&#8221; Neil Richards takes issue with Volokh&#8217;s arguments. Richards instead argues that, most importantly, privacy regulation <em>is not</em> speech regulation at all, and, additionally, that in commercial contexts at least, &#8220;speech restrictions &#8230; have never triggered heightened First Amendment scrutiny.&#8221; In other words, either the data being protected isn&#8217;t &#8220;speech&#8221; in the legal sense, or &#8220;because they are legitimate speech regulations under existing doctrine.&#8221;</p> <p><strong>Scope</strong></p> <p>Richards advocates that courts should first consider whether a privacy rule even regulates what falls within the scope of the First Amendment. To explain &#8220;scope,&#8221; Richards points out that many normal criminal laws punish &#8220;speech,&#8221; but fall outside the scope of the First Amendment: fraud, criminal threats, conspiracies, and solicitation of criminal acts, for example. Additional non-criminal laws constrain speech &#8220;in the context of securities, antitrust, labor organizing, copyrights, trademarks, sexual harassment &#8230; and vast amounts of evidence and tort law.&#8221; These too are considered outside the scope of the First Amendment. Why should privacy laws be any different?</p> <p>Richards proposes an approach to treating scope that draws on concepts used in other Constitutional jurisprudence. He suggests using &#8220;rational basis&#8221; review for legal rules involving the commercial trade in customer data, but using higher levels of scrutiny for &#8220;privacy rules that restrict speech.&#8221; Disclosure of &#8220;newsworthy facts&#8221; would warrant strict scrutiny, while lesser-protected speech (telemarketing, photography) would receive &#8220;intermediate scrutiny under the commercial speech doctrine.&#8221;</p> <p><strong>Categories of Information Processing</strong></p> <p>To better analyze and target rules for different parts of information processing in the context of potentially private data, Richards proposes four different stages, only two of which potentially fall within the scope of the First Amendment at all:</p> <ol> <li>rules governing the collection of information,</li> <li>rules governing the use of such information,</li> <li>rules governing the disclosure of information,</li> <li>regulation of direct marketing.</li> </ol> <p>Stages 1 and 2 can be safely regulated without bringing the rules within the scope of the First Amendment, while stage 3 can be regulated under commercial speech rules. Stage 4 clearly falls within the First Amendment, but current doctrine already permits extensive regulation of such speech.</p> <p><strong>Conclusion</strong></p> <p>In the end, then, Richards argues that &#8220;when we subject both data privacy regulations and the First Amendment to careful scrutiny, they can be reconciled without sacrificing either.&#8221; Although Volokh&#8217;s critique of privacy laws as violations of the First Amendment is rhetorically powerful, I find Richards&#8217; arguments more compelling, as well as more reconcilable with positive societal goals. This last point is perhaps not enough on which to <em>base</em> a legal argument, but I appreciate legal arguments that support such ends in a rational and articulate manner.</p> "Robert Horwitz on the deregulation of American telecommunications" https://inpropriapersona.com/articles/the-irony-of-regulatory-reform/ Mon, 31 Oct 2011 02:02:21 +0000 3b1ca6c7e751ae9b71437a76e2f86edb <figure style="max-width: 107px" class="wp-caption alignright"><a href="http://www.amazon.com/gp/product/0195069994/ref=as_li_ss_il?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=217145&amp;creative=399369&amp;creativeASIN=0195069994"><img class=" " style="border-style: initial; border-color: initial; border-image: initial; border-width: 0px;" src="http://ws.assoc-amazon.com/widgets/q?_encoding=UTF8&amp;Format=_SL160_&amp;ASIN=0195069994&amp;MarketPlace=US&amp;ID=AsinImage&amp;WS=1&amp;tag=commentinprop-20&amp;ServiceVersion=20070822" alt="" width="107" height="160" border="0" /></a><figcaption class="wp-caption-text">By Robert Horwitz</figcaption></figure> <p><img style="border: none !important; margin: 0px !important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0195069994&amp;camp=217145&amp;creative=399369" alt="" width="1" height="1" border="0" />Robert Horwitz&#8217;s <a href="http://www.amazon.com/gp/product/0195069994/ref=as_li_ss_il?ie=UTF8&amp;amp;tag=commentinprop-20&amp;amp;linkCode=as2&amp;amp;camp=217145&amp;amp;creative=399369&amp;amp;creativeASIN=0195069994">The Irony of Regulatory Reform: The Deregulation of American Telecommunications</a>, published in 1989, explores in depth the issue of telecommunications regulation at a time when telecommunications was once again in transition. My own interest is in the revolutions in communications technologies that occurred with the spread of American post offices in the 18th century, the telegraph in the 19th, and the telephone&#8211;and then radio, TV, and cable&#8211;in the 20th. Horwitz writes:</p> <blockquote><p>Telecommunications constitutes one of the four essential modes or channels that permit trade and discourse among members of a society, the other three being transportation, energy utilities, and the system of currency exchange, or money. &#8230; These services are &#8220;connective&#8221; institutions. They are central to the circulation of capital and literally constitute both the foundation and the limit for the overall functioning of a society. This is why &#8230; they are called infrastructures.</p></blockquote> <p>In 1989, deregulation of industries overseen by agencies created during the <a class="zem_slink" title="New Deal" href="http://en.wikipedia.org/wiki/New_Deal" rel="wikipedia">New Deal</a> was in full swing. The irony for Horwitz is that &#8220;deregulation has most strongly affected those regulatory agencies whose actions have been <em>least </em>odious to business.&#8221; Thus, agencies created later and earlier than the New Deal were largely unaffected.</p> <p><strong>History</strong></p> <p>Looking backwards, Horwitz says that the &#8220;emergency of regulatory agencies constituted the building of a <em>national</em> administrative structures in a state which had been institutionally localistic and court-centered.&#8221; He argues that in the 19th century, the courts provided the oversight of economic development that would eventually be taken over by modern administrative agencies. This changed in the 1890s, after <em>laissez-faire</em> economic principles had created &#8220;a general crisis of social control.&#8221; The era of big business necessitated an (eventual) government response.</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 150px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:Food_and_Drug_Administration_logo.svg"><img class="zemanta-img-configured " title="FDA Logo" src="http://upload.wikimedia.org/wikipedia/commons/thumb/7/7d/Food_and_Drug_Administration_logo.svg/75px-Food_and_Drug_Administration_logo.svg.png" alt="" width="150" height="64" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>The <a class="zem_slink" title="Progressive Era" href="http://en.wikipedia.org/wiki/Progressive_Era" rel="wikipedia">Progressive Era</a> saw the first new regulatory bodies emerge, largely &#8220;in response to popular political activism.&#8221; This gave us what would become the Food and Drug Administration, the Justice Department&#8217;s antitrust division, and the Federal Trade Commission. <a class="zem_slink" title="Alphabet agencies" href="http://en.wikipedia.org/wiki/Alphabet_agencies" rel="wikipedia">New Deal agencies</a>, on the other hand, were created to bring stability to specific markets, and was generally greeted with enthusiasm by businesses desperate for such stability. In the 1960s and 70s, the regulatory focus shifted to more general social protections, especially of citizens as a whole. This was the era of the Environmental Protection Agency and the Occupational Safety and Health Administration.</p> <p><strong>The New Regulatory Agencies of the 20th Century</strong></p> <p>Regulatory agencies of the 20th century are a new phenomenon. According to Horwitz,</p> <blockquote><p>Regulatory agencies constitute a new structure of federal political power in the American political system; they represent a mixture of legislative, executive, and judicial functions.</p></blockquote> <p>In the American system of separated powers, they are an odd delegation of Congressional power: legislatively created, administered by the executive branch, and often given quasi-judicial responsibilities to hear and decide cases (with judicial review, of course, the level of which has varied over time).</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 200px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Segovia-aquaduct-001.jpg"><img class="zemanta-img-configured " title="The 2nd Century Roman Aquaduct in Segovia, Spain" src="http://upload.wikimedia.org/wikipedia/commons/thumb/1/12/Segovia-aquaduct-001.jpg/300px-Segovia-aquaduct-001.jpg" alt="" width="200" height="150" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>While industry regulation serves a certain level of private interest&#8211;especially in the creation of <em>stability</em>&#8211;much regulation involves what Horwitz calls the &#8220;public interest&#8221;: &#8220;something larger, something more general.&#8221; Although the 20th-century regulatory agency was a new beast in the United States, &#8220;the construction and maintenance of infrastructures usually have been the responsibility of governments&#8221; as far back as 13th-century England (in the Anglo-American tradition, at least&#8211;but remember that the Roman state built aqueducts and roads much earlier, for example).</p> <p>In the United States, the <a class="zem_slink" title="Commerce Clause" href="http://en.wikipedia.org/wiki/Commerce_Clause" rel="wikipedia">Commerce Clause</a> justified federal government intervention. Because this economically focused rationale underpins the American regulatory approach, Horwitz argues that, &#8220;[i]f there is a <em>general</em> concept of the public interest informing state intervention into infrastructure industries, it is a commerce-based concept.&#8221; Thus, in regulation transportation, &#8220;nondiscrimination&#8221; has been key. The goal? To ensure &#8220;[t]hat carriers would <em>serve</em> the needs of commerce rather than inhibit commerce.&#8221;</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 150px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:Hungarian_Telephone_Factory_1937_Budapest.jpg"><img class="zemanta-img-configured " title="Hungarian Telephone Factory - 1937. Budapest" src="http://upload.wikimedia.org/wikipedia/commons/thumb/d/db/Hungarian_Telephone_Factory_1937_Budapest.jpg/300px-Hungarian_Telephone_Factory_1937_Budapest.jpg" alt="" width="150" height="150" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>In telecommunications, the &#8220;common carrier principle is really little more than a <em>commerce-based</em> notion of the public interest.&#8221; It &#8220;guaranteed access to the means of transmission.&#8221; Granting individual people access was really just &#8220;a logical extension of expanding the marketplace.&#8221; But despite this limited original impetus, &#8220;common carrier law embraces principles broader than commerce&#8221; as it made the telephone &#8220;available (in principle) to all citizens.&#8221;</p> <p><strong>Liberty</strong></p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 150px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:John_Stuart_Mill_by_John_Watkins%2C_1865.jpg"><img class="zemanta-img-configured " title="John Stuart Mill" src="http://upload.wikimedia.org/wikipedia/commons/4/43/John_Stuart_Mill_by_John_Watkins%2C_1865.jpg" alt="" width="150" height="223" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Telecommunications, though, involves essential aspects of liberty, especially the ideals of &#8220;free speech&#8221; embodied in the <a class="zem_slink" title="First Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" rel="wikipedia">First Amendment to the United States Constitution</a>. Freedom of commerce does connect to freedom of speech is historically linked to the liberal (in the tradition of Locke and Mill) ideology of the free market. Thus, the ideology of free speech has for many years been to encourage the &#8220;<a href="http://en.wikipedia.org/wiki/Marketplace_of_ideas">marketplace of ideas</a>.&#8221; The assumption, says Horwitz, is that &#8220;a democratic public sphere will emerge consequent to the unimpeded, private actions of speech-entrepreneurs.&#8221;</p> <p>But what happens when those &#8220;speech-entrepreneurs&#8221; are a few powerful corporations who demand significant money to utilize their infrastructure? The result can be that &#8220;those with wealth can disseminate their views, the First Amendment &#8216;right&#8217; of most citizens is merely to listen and read. Yet a free marketplace of ideas implies <em>dialogue.&#8221;</em></p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 128px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:Crystal_Clear_app_browser.png"><img class="zemanta-img-configured " title="The Internet" src="http://upload.wikimedia.org/wikipedia/commons/f/fe/Crystal_Clear_app_browser.png" alt="" width="128" height="128" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Today we have the Internet and the World Wide Web, which have the <em>potential</em> to turn everyone into contributors as well as consumers of information. Does this mean, then, that the natural form of these new mediums reduce of eliminate the necessity of their regulation? Or is regulation still needed to maintain a &#8220;free marketplace&#8221; of both ideas and commerce?</p> <p><strong>Deregulation</strong></p> <p>Deregulation can reduce the power of established cartels and allow for innovation and novelty: &#8220;It permits the resurgence of competition and the anarchistic play of market forces.&#8221;  This, though, is certainly <em>not </em>in the interest of established players&#8211;so why is modern deregulation so associated with big (entrenched) business?</p> <p>Partly, says Horwitz, this is due to the divergence of &#8220;administrative rationality and economic rationality.&#8221; Regulatory agencies are conservative and bureaucratic by their nature, and the logic of rules be lost even as their enforcement continues. Irrationality&#8211;and the regulatory delay of agencies struggling to apply outdated rules to a complex environment&#8211;can lead to business uncertainty instead of stability. The burden on the regulated industries thus grows over time. This was made worse as the social goals of the 1960s and 70s created &#8220;new obligations, costs, and time delays.&#8221; The result? Deregulation won out in many&#8211;but not all!&#8211;contexts.</p> <p>&nbsp;</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f3c4e68f-1aa4-41a9-8047-d9b597f3bb4d" alt="" /></div> "Thinking about privacy and the First Amendment" https://inpropriapersona.com/articles/thinking-about-privacy-and-the-first-amendment/ Fri, 28 Oct 2011 01:17:24 +0000 870fcb58d0d2174e1c04fb267d91a325 <figure id="attachment_4514" style="max-width: 300px" class="wp-caption alignright"><a href="https://inpropriapersona.com/2011/10/thinking-about-privacy-and-the-first-amendment/right-to-privacy/" rel="attachment wp-att-4514"><img class="size-medium wp-image-4514" title="Right to Privacy by Warren and Brandeis" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514417259/right-to-privacy_fiq7e8.jpg" alt="" width="300" height="300" /></a><figcaption class="wp-caption-text">Digital edition of &quot;The Right to Privacy&quot;</figcaption></figure> <p>Part of the historical work I&#8217;ve been doing focuses on the history of privacy and the introduction of new technologies, like the telegraph. In terms of of the <a class="zem_slink" title="United States Constitution" href="http://en.wikipedia.org/wiki/United_States_Constitution" rel="wikipedia">U.S. Constitution</a>, I&#8217;ve been focused mostly on the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution" rel="wikipedia">Fourth Amendment</a> (which regulates searches and seizures). However, the <a class="zem_slink" title="First Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" rel="wikipedia">First Amendment</a>&#8216;s speech protections are also potentially implicated, especially when it comes to modern information privacy law&#8211;a point <a class="zem_slink" title="Eugene Volokh" href="http://en.wikipedia.org/wiki/Eugene_Volokh" rel="wikipedia">Eugene Volokh</a> explored in his 2000 law review article, &#8220;Cyberspace and Privacy: A New Legal Paradigm?&#8221;</p> <p>I am not going to as fully analyze the issue here, but I wanted to begin thinking about it. To do this, I&#8217;m going to think about Volokh&#8217;s points in relation to <a class="zem_slink" title="Samuel D. Warren" href="http://en.wikipedia.org/wiki/Samuel_D._Warren" rel="wikipedia">Samuel D. Warren</a> and <a class="zem_slink" title="Louis Brandeis" href="http://en.wikipedia.org/wiki/Louis_Brandeis" rel="wikipedia">Louis D. Brandeis</a>&#8216;s 1890 law review article, &#8220;<a href="http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html">The Right to Privacy</a>.&#8221; This highly influential piece advocated for &#8220;the fundamental right to be let alone.&#8221; But is it impossible to reconcile such a right with an equally compelling right to free speech?</p> <aside> The "fire in crowded theater" example is also often <a href="https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/">misunderstood and misapplied</a>. A better example might be what courts call <a href="https://www.courtlistener.com/opinion/111256/regan-v-time-inc/">reasonable time, place, and manner</a> restrictions on speech. </aside> <p>Of course, the right to &#8220;free speech&#8221; is not an absolute right, and there are many constraints (yelling &#8220;fire&#8221; in a crowded theater is, of course, a classic example). But still, the requirement that the government &#8220;shall make no law &#8230; abridging the freedom of speech, or of the press&#8221; is explicitly written in the Constitution, whereas the &#8220;right to privacy&#8221; is part of its &#8220;<a href="http://legal-dictionary.thefreedictionary.com/penumbral">penumbra</a>.&#8221; So perhaps the debate is easier for originalists like <a href="https://inpropriapersona.com/2011/10/liberty-or-inflexibility-reading-antonin-scalia/">Antonin Scalia</a>, who can end the debate by asserting that the original meaning of the Constitution does not include a right to privacy, but it does include a free speech provision.</p> <p>The Warren and Brandeis article attacks the new gossip columns and photographs made possible by new technologies of the era. They connect their argument for the protection of a person&#8217;s &#8220;inviolate personality&#8221; to the protections afforded, via copyright for example, to &#8220;personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form&#8221; (206).</p> <p>Volokh quickly dispenses with arguments that copyright, despite its restrictions on speech, is itself barred by the First Amendment, primarily on the grounds that courts have not allowed &#8220;intellectual property owners the power to suppress facts&#8221; (1065, citing to <a class="zem_slink" title="Harper &amp; Row v. Nation Enterprises" href="http://en.wikipedia.org/wiki/Harper_%26_Row_v._Nation_Enterprises" rel="wikipedia">Harper &amp; Row v. Nation Enterprises</a>). Thus, I may publish a cutting-edge exploration of new historical materials I spent years digging out of the archives and while you may not simply photocopy and redistribute my work, you can write your own work drawing on all the labor I spent bringing forth these new facts. (See also, &#8220;<a href="https://inpropriapersona.com/2010/02/you-do-not-get-an-a-for-effort-with-copyright/">You do not get an &#8216;A for effort&#8217; with copyright</a>.&#8221;)</p> <p>But do I have a right to prevent the publication of personal facts about me, however embarrassing they may be? (Remember, copyright protects my creative expression, <em>not </em>the bare facts themselves, so it&#8217;s no help here.) What about restrictions on publishing my criminal history? Or my video rental history? Or  my credit card purchasing history?</p> <p>If I obtain these items via a contractual arrangement, Volokh says, there is no problem, because enforcing contractual restrictions on speech does not offend the Constitution. But what if I get them without agreeing to a contract? Can the government still prohibit their publication? Volokh says there is a problem here (1092-94).</p> <p>Very often, free speech protections are analyzed under a &#8220;marketplace of ideas&#8221; paradigm. In this analysis, we need speech&#8211;and allowing it is good&#8211;because it contributes to our ability to make decisions, and the greater the marketplace, the better decisions we can make. Bad ideas are countered by more speech, not by restricting their entry into the marketplace.</p> <p>My criminal history and credit card history are certainly good information to have if you are evaluating me for a job or elected office, so in a marketplace analysis, they shouldn&#8217;t be suppressed. But there is a realm of &#8220;non-public-concern&#8221; topics that can be restricted (accidental nudity, for example)&#8211;but Volokh suggests this is too slippery of a concept to function as an effective test (1094-95).</p> <p>Government can regulate speech if there is a &#8220;compelling state interest&#8221; (1106). Is privacy protection sufficiently compelling? Relatedly, is the penumbra-derived right to privacy sufficient to counter free speech arguments?</p> <p>Volokh argues that privacy rights are &#8220;statutory or common-law&#8221; derived, and are not &#8220;analogous to a constitutional right&#8221; (1108). Furthermore, the First Amendment only prevents government interference with speech, not private actions to interfere with it; thus, privacy rights might well only protect against government violations, <em>not </em>allow for government to regulate non-government interference with privacy.</p> <p>Volokh attacks Warren and Brandeis most directly when he writes:</p> <blockquote><p>On the other hand, if the claim is that the ability of private parties to communicate personal information about others<br /> by itself “destroy[s] individual dignity and integrity and emasculate[s] individual freedom and independence,” “deprive[s people] of [their] individuality,” makes it impossible for “intimate relationships [to] exist,” or denies that a person&#8217;s “existence is his own,” such a claim is simply false.</p></blockquote> <p>This is pretty close to the argument that Warren and Brandeis make when they attack gossip columns. But even if the claim is true, Volokh says restricting publication to protect this is unconstitutional:</p> <blockquote><p>Under current constitutional doctrine, the answer seems to be no. Though the Supreme Court has sometimes left open the door to the possibility of restricting truthful speech simply on those grounds, the general trend of the cases cuts against this: Even offensive, outrageous, disrespectful, and dignity-assaulting speech is constitutionally protected.</p></blockquote> <p>It seems to me pretty clear that Volokh does not agree with Warren and Brandeis. I still think there&#8217;s potential for an alternative approach that might allow for certain kinds of privacy protection without overly violating the U.S.&#8217;s very strong speech protections (note that this isn&#8217;t a problem generally in Europe, which permits much greater restrictions on speech when it serves as a protection against, for example, Nazism), but it&#8217;s not yet obvious to me what approach would be.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://volokh.com/2011/10/17/knowingly-false-statements-of-fact-and-the-first-amendment/">Knowingly False Statements of Fact and the First Amendment</a> (volokh.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2ea2cf50-c687-403f-9dc7-ec336a5bfd9a" alt="" /></div> "Free speech and broadcasting: Cohen v. California and FCC v. Pacifica Foundation" https://inpropriapersona.com/articles/free-speech-and-broadcasting-cohen-v-california-and-fcc-v-pacifica-foundation/ Sun, 23 Oct 2011 00:59:04 +0000 b1c3bd17916fd1e6535ef139840abf8e <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/mindelei/2809718705"><img title="George Carlin" src="http://farm4.static.flickr.com/3240/2809718705_9c05a2e1fd_m.jpg" alt="" width="240" height="180" /></a><figcaption class="wp-caption-text">&quot;George Carlin&quot; by mindelei (CC BY-NC-SA 2.0)</figcaption></figure> <p>Balancing strong <a class="zem_slink" title="First Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" rel="wikipedia">First Amendment</a> (&#8220;free speech&#8221;) speech protections with the desire to protect the delicate sensibilities of America&#8217;s youth is always a complex task. Two seminal Supreme Court cases&#8211;<em><a class="zem_slink" title="Cohen v. California" href="http://en.wikipedia.org/wiki/Cohen_v._California" rel="wikipedia">Cohen v. California</a></em> and <em><a class="zem_slink" title="Federal Communications Commission v. Pacifica Foundation" href="http://en.wikipedia.org/wiki/Federal_Communications_Commission_v._Pacifica_Foundation" rel="wikipedia">FCC v. Pacifica Foundation</a></em>&#8211;illustrate the struggle the Court has had to find the right path.</p> <p>In <em>Cohen</em>, decided in 1971, the Supreme Court overturned the conviction of a man wearing a jacked in a courthouse that attacked the draft with a four-letter word (&#8220;Fuck the Draft&#8221;). In that case, Justice Harlan, writing for the majority, &#8220;one man&#8217;s vulgarity is another&#8217;s lyric,&#8221; and said that offended readers could simply turn away. A state has no right to ban profanity to maintain &#8220;civility.&#8221;</p> <p>Nonetheless, in 1978 the court upheld fines imposed by the FCC on the owner of a New York radio station for broadcasting George Carlin&#8217;s &#8220;<a class="zem_slink" title="Seven dirty words" href="http://en.wikipedia.org/wiki/Seven_dirty_words" rel="wikipedia">Filthy Words</a>.&#8221; Why the difference? Is the medium of radio really so different that it requires different rules, ones that now <em>do </em>permit the state (in this instance, the federal government) to ban profanity? Or was Carlin&#8217;s speech in a different, less protected category than Cohen&#8217;s opinion on the draft?</p> <p>The majority in <em>FCC v. Pacifica Foundation</em> sees no conflict with <em>Cohen, </em>and in fact cites Harlan&#8217;s vulgarity statement approvingly&#8211;but then proceeds to say that</p> <blockquote><p>content of that character [i.e., &#8220;vulgar,&#8221; &#8220;offensive,&#8221; and &#8220;shocking&#8221;] is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission&#8217;s action was constitutionally permissible.</p></blockquote> <p>Indeed, <em>Cohen</em> foresees this issue of considering the circumstances, and ties those circumstances to invasions of privacy interests, especially in the home:</p> <blockquote><p>The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.</p></blockquote> <p>This is the exception seized upon most strongly by the majority in <em>Pacifica Foundation</em>:</p> <blockquote><p>Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual&#8217;s right to be left alone plainly outweighs the First Amendment rights of an intruder. <a href="http://scholar.google.com/scholar_case?case=3558098989148411069&amp;hl=en&amp;as_sdt=2,5&amp;as_vis=1"><em>Rowan</em> v. <em>Post Office Dept.,</em> 397 U. S. 728</a>.</p></blockquote> <p>(Additionally, the Court also argues for the importance of protecting children&#8211;an argument that the Court in <em>Cohen</em> found unconvincing, but which the majority here thinks is quite important.)</p> <p>In his concurrence, Justice Powell makes the case that broadcast media are uniquely capable of intruding on &#8220;unwilling adults &#8230; in their homes&#8221;:</p> <blockquote><p>The result turns instead on the unique characteristics of the broadcast media, combined with society&#8217;s right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today&#8217;s decision will prevent any adult who wishes to receive Carlin&#8217;s message in Carlin&#8217;s own words from doing so, and from making for himself a value judgment as to the merit of the message and words.</p></blockquote> <p><a class="zem_slink" title="William J. Brennan, Jr." href="http://en.wikipedia.org/wiki/William_J._Brennan%2C_Jr." rel="wikipedia">Justice Brennan</a>, though, strongly dissents, and attacks the majority for imposing its views of words and morality on the public at large:</p> <blockquote><p>the Court&#8217;s decision may be seen for what, in the broader perspective, it really is: another of the dominant culture&#8217;s inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking.</p></blockquote> <p>Brennan also argues that there is nothing so invasive about radio as a broadcast media that uniquely allows it to invade the home:</p> <blockquote><p>unlike other intrusive modes of communication, such as sound trucks, &#8220;[t]he radio can be turned off,&#8221;<a href="http://scholar.google.com/scholar_case?case=5203112481375027665&amp;hl=en&amp;as_sdt=2,5&amp;as_vis=1"><em>Lehman</em> v. <em>Shaker Heights,</em> 418 U. S. 298,302 (1974)</a>— and with a minimum of effort. As Chief Judge Bazelon aptly observed below, &#8220;having elected to receive public air waves, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in <em>Cohen</em> and <a href="http://scholar.google.com/scholar_case?case=7611920100258061680&amp;hl=en&amp;as_sdt=2,5&amp;as_vis=1"><em>Erznoznik</em> [v. <em>Jacksonville,</em> 422 U. S. 205</a> (1975)]; he can avert his attention by changing channels or turning off the set.&#8221; 181 U. S. App. D. C. 132, 149, 556 F. 2d 9, 26 (1977).</p></blockquote> <p>In other words, for Brennan, there is nothing intrinsically different about radio. Unlike amplified sound&#8211;and like seeing a jacket with swear word on it&#8211;one can simply turn it off or turn away.</p> <p>So&#8211;ignoring <em>stare decisis</em>&#8211;which approach do you find more persuasive? Is broadcast particularly invasive because it is transmitted into the home? Are children as a result particularly vulnerable? And what about the Internet, which while not a push medium like radio or TV, certainly enters the home?</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2b9bca8d-4c78-4010-92ad-68545968e7f7" alt="" /></div> "Civil law and courts of equity: the common law is hybrid law" https://inpropriapersona.com/articles/civil-law-and-courts-of-equity-the-common-law-is-hybrid-law/ Thu, 20 Oct 2011 23:48:17 +0000 8301aa24e2dd932d53a915b7773a4449 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:The_Court_of_Chancery_during_the_reign_of_George_I_by_Benjamin_Ferrers.jpg"><img class="zemanta-img-configured" title="The Court of Chancery during the reign of Geor..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/2/2f/The_Court_of_Chancery_during_the_reign_of_George_I_by_Benjamin_Ferrers.jpg/300px-The_Court_of_Chancery_during_the_reign_of_George_I_by_Benjamin_Ferrers.jpg" alt="The Court of Chancery during the reign of Geor..." width="300" height="371" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>As I noted earlier in <a href="https://inpropriapersona.com/2011/10/civil-laws-influence-on-american-common-law-the-appeal/">Civil law&#8217;s influence on American common law: the appeal</a>, the <a class="zem_slink" title="Roman law" href="http://en.wikipedia.org/wiki/Roman_law" rel="wikipedia">Roman civil law</a> tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that <em>combines</em> common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on &#8220;equity&#8221; or fairness and justice.</p> <p>The American legal system directly drew on the English one.  As noted above, the <a class="zem_slink" title="English law" href="http://en.wikipedia.org/wiki/English_law" rel="wikipedia">English legal system</a> was really (at least) two parts: common law (the King&#8217;s Bench, Court of Common Pleas, etc.) and equity (the <a class="zem_slink" title="Court of Chancery" href="http://en.wikipedia.org/wiki/Court_of_Chancery" rel="wikipedia">Courts of Chancery</a>). The various new states, along with the federal court system, variously integrated or continued this separation&#8211;but generally emphasized the <em>common law </em>as the protector of the common man. This was the case even though the <a class="zem_slink" title="Court of equity" href="http://en.wikipedia.org/wiki/Court_of_equity" rel="wikipedia">courts of equity</a> had been for centuries the protector of principles of justice and fairness, while common-law courts had been seen as interested only in formal mechanisms through its rigid system of &#8220;writs.&#8221;</p> <p>The relationship, though, was complex and not at all as simple as this. Common-law courts gave jury trials to those accused, and guaranteed the right to confront an accuser, while the courts of equity had no juries and took evidence in secret. Despite relying on judge-made precedents, the common-law courts became associated with Parliament against the King, while the equity courts (especially the notorious Star Chamber) dispensed royal justice (an appeal to equity was an appeal to the conscience of the king). Common-law juries refused to convict those they considered unjustly accused (especially for political reasons), regardless of the law (now called &#8220;jury nullification&#8221;). Common-law judges began to enforce both judge-made customary law <em>and </em>the statutes of Parliament.</p> <p>Lawyers in the equity system in England were known as &#8220;civilians,&#8221; and historically had been trained in canon law. Canon law was the law of the Catholic Church, and derived from Roman civil law. With the break from Rome by <a class="zem_slink" title="Henry VIII of England" href="http://en.wikipedia.org/wiki/Henry_VIII_of_England" rel="wikipedia">Henry the VIII</a>, the equitable system moved from an appeal to King and Pope to an appeal only to the King&#8211;but the sense of connection to Rome continued for many, and likely contributed to generally Protestant America&#8217;s suspicions of English equity.</p> <p>Despite this suspicion, courts of equity were adopted into the American system in various ways. Some states kept distinct courts, others merged them, but all kept the remedies (typically, injections) afforded by the system as a necessary complement to the common-law remedies (typically, monetary awards only for non-criminal trials&#8211;though the common-law system gave us <em><a class="zem_slink" title="Habeas corpus" href="http://en.wikipedia.org/wiki/Habeas_corpus" rel="wikipedia">habeus corpus</a></em> as a remedy against abuses of equity&#8217;s jailing of people for refusing to obey injunctions).</p> <p>In effect, in both England and America, there has been an uneasy back-and-forth between courts of law and court of equity. Even when these have been merged into one body, there has been a continuing balancing and negotiation between common law&#8217;s methods and equity&#8217;s methods.</p> <p>Civil law gave us the appeal to equity. Common law gave u<em>s habeas corpus</em> and the jury. Equity gave us straightforward complaints written in the vernacular. Common law gave us the adversarial battle between attorneys. Equity gave us discovery.</p> <p>In short, despite everything I was led to believe in law school, the United States (and England, for that matter) really has a hybrid civil/common-law system.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/10/civil-laws-influence-on-american-common-law-the-appeal/">Civil law&#8217;s influence on American common law: the appeal</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://ssrn.com/abstract=630613">Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial</a> (ssrn.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=7f985e3c-dae8-40fb-8bf3-bc336a85732c" alt="" /></div> "Liberty or inflexibility: reading Antonin Scalia" https://inpropriapersona.com/articles/liberty-or-inflexibility-reading-antonin-scalia/ Sun, 16 Oct 2011 22:38:00 +0000 5d04c40d7520a2f802c73ce0fc715645 <p><a href="http://www.amazon.com/gp/product/0691004005/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0691004005&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=XP3JI5MF2FZZPNNJ" rel="nofollow"><img class="alignright" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0691004005&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /></a><img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0691004005" alt="" width="1" height="1" border="0" /><a title="Antonin Scalia" href="http://en.wikipedia.org/wiki/Antonin_Scalia" rel="wikipedia">Antonin Scalia</a>, Supreme Court justice and originalist extraordinaire, wrote &#8220;<a href="http://web.archive.org/web/20130211073009/http://tannerlectures.utah.edu/lectures/documents/scalia97.pdf">Common-Law Courts in a Civil Law System</a>&#8221; as a part of <a href="http://www.amazon.com/gp/product/0691004005/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0691004005&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=XP3JI5MF2FZZPNNJ" rel="nofollow">A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series)</a>.<img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0691004005" alt="" width="1" height="1" border="0" /> In it he explains his approach to legal reasoning and to constitutional interpretation, rejecting both legislative history and the so-called &#8220;<a class="zem_slink" title="Living Constitution" href="http://en.wikipedia.org/wiki/Living_Constitution" rel="wikipedia">living Constitution</a>&#8221; of liberal justices like <a class="zem_slink" title="Stephen Breyer" href="http://en.wikipedia.org/wiki/Stephen_Breyer" rel="wikipedia">Stephen Breyer</a>.</p> <p>One particular point struck me as I read through Scalia&#8217;s article: for him, focus appears to be on the freedom of government to do what it wishes, not on what is typically called the &#8220;civil liberties&#8221; of individuals. Scalia writes:</p> <blockquote><p>Historically, and particularly in the past thirty-five years, the &#8220;evolving&#8221; Constitution has imposed a vast array of new constraints&#8211;new inflexibilities&#8211;upon administrative, judicial, and legislative action.</p></blockquote> <p>Thus, for example, the exclusionary rule &#8212; which forbids the &#8220;admitting in a state criminal trial evidence of guilt that was obtained by unlawful search&#8221; is <em>not </em>about increasing nor protecting individual liberties, but rather about decreasing the freedom of &#8220;democratic government.&#8221; Similarly, &#8220;imposing property requirements as a condition of voting&#8221; could once &#8220;be done or not done, as the society desired&#8221; is a problem because it removes rights from <em>government, </em>rather than a good thing because it increases the rights of individuals.</p> <blockquote><p>And the future agenda of constitutional evolutionists is mostly more of the same&#8211;the creation of <em>new</em> restrictions upon democratic government, rather than the limitation of old ones. <em>Less</em> flexibility in government, not <em>more.</em> &#8230; [G]enerally speaking, devotees of The Living Constitution do not seek to facilitate social change but to <em>prevent </em>it.</p></blockquote> <p>He acknowledges that this isn&#8217;t always the case, but then says that</p> <blockquote><p>those exceptions only serve to refute another argument of the proponents of an evolving Constitution, that evolution will always be in the direction of greater personal liberty.</p></blockquote> <p>Suddenly, and remarkably, Scalia has made the leap to connect &#8220;personal liberty&#8221; with the freedom of government to make laws. He then continues this with a discussion of his favorite <em>personal</em> liberties: property rights and guns. This is the argument I expected to see from him, and is a traditional (and important) dispute over which liberties are more important. But Scalia here presents them as an extension of decreasing the liberty of the <em>government</em> to make laws.</p> <p>It&#8217;s a fascinating rhetorical move, and is perhaps even more important as a fundamental distinction that tells us something more about likely outcomes than debates about &#8220;originalism&#8221; or &#8220;textualism&#8221; do.<img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f543a9bb-d6ec-453b-a518-a55bf9cbed8c" alt="" /></p> "National identity through postal delivery of newspapers" https://inpropriapersona.com/articles/national-identity-through-postal-delivery-of-newspapers/ Wed, 12 Oct 2011 00:35:05 +0000 4c60c66df7aad4d89fc204d6fa8909c0 <figure id="attachment_4340" style="max-width: 200px" class="wp-caption alignright"><a href="https://inpropriapersona.com/2011/10/national-identity-through-postal-delivery-of-newspapers/spreading-the-news/" rel="attachment wp-att-4340"><img class="size-medium wp-image-4340" title="Spreading the News" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_200/v1514417272/Spreading-the-news_m5vdhp.jpg" alt="" width="200" height="300" /></a><figcaption class="wp-caption-text">Spreading the news: the American postal system from Franklin to Morse By Richard R. John</figcaption></figure> <p>In <a href="http://books.google.com/books?id=yH2sBwOiAuIC">Spreading the News</a>, Richard R. John writes about the development of the American postal system in the eighteenth century, and the police choices that leverages the system as a means of newspaper distribution.</p> <p>The technological devices of the post and the newspaper were not new in the eighteenth century; horses, paper, and printing presses had been around for centuries. But the new American government prioritized newspaper delivery, and utilized postage fees from merchants to subsidize the development of profit-losing rural routes in order. Of course, the eighteenth and nineteenth centuries brought to Europe a new technological development of a different kind: bureaucracies and various corporate forms that more efficiently organized people and their actions.</p> <p>Nonetheless, the technologies did not determine the outcome that John discusses, but rather enabled it. Instead, it was the policy choices in Washington, D.C. that determined (retrospectively, anyway) the outcome. These policies favored newspapers and avoided using the postal system (despite the fact that in the early nineteenth century it composed roughly 3/4 of the entire federal government and federal budget) to subsidize other federal activities. The result? A sense of national&#8211;and even world&#8211;identity beyond mere connection to one&#8217;s individual state or locality.</p> <p>&nbsp;</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=17bab6b9-f5a8-4325-9934-006d25454902" alt="" /></div> "Civil law’s influence on American common law: the appeal" https://inpropriapersona.com/articles/civil-laws-influence-on-american-common-law-the-appeal/ Mon, 10 Oct 2011 01:07:26 +0000 d6c8f618da92985aed42edb277376cc7 <figure id="attachment_4335" style="max-width: 231px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/yalelawlibrary/6003242456/in/photostream/"><img class="size-medium wp-image-4335" title="Corpus Iuris Civilis 1663" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_232/v1514417275/Corpus-Iuris-Civilis-1663_y93fxp.jpg" alt="Corpus Iuris Civilis 1663" width="231" height="300" /></a><figcaption class="wp-caption-text">&quot;Corpus Iuris Civilis 1663&quot; from Yale Law Library, used under a Creative Commons license</figcaption></figure> <p>In &#8220;Salamanders and Sons of God,&#8221; an article in<a href="http://books.google.com/books?id=g6JI2Q66WLsC"> The Many Legalities of Early America</a>, Mary Sarah Bilder writes about the &#8220;Culture of Appeal in Early New England,&#8221; and situatesthe embrace of the right to appeal by New Englanders within the larger English and Roman legal tradition. English law in the sixteenth and seventeenth centuries was based on <a href="http://en.wikipedia.org/wiki/Common_law">common law</a>, a system that relied not on statute but rather on custom, and</p> <blockquote><p>in which pleas to the judiciary required addressing &#8220;reason&#8221;&#8211;&#8220;the faculty acquired by training that extracted some workable rules from a formless body of immemorial knowledge&#8221;&#8211;rather than appealing on the basis of what any ordinary person could claim was justice, equity or mercy (Bilder 51).</p></blockquote> <p>In the traditional <a class="zem_slink" title="Common law" href="http://en.wikipedia.org/wiki/Common_law" rel="wikipedia">common-law system</a>, there were no appeals. There were various &#8220;<a class="zem_slink" title="Writ" href="http://en.wikipedia.org/wiki/Writ" rel="wikipedia">writs</a>&#8220;: the &#8220;writ of false judgment,&#8221; the &#8220;<a class="zem_slink" title="Writ of attaint" href="http://en.wikipedia.org/wiki/Writ_of_attaint" rel="wikipedia">writ of attaint</a>,&#8221; and the &#8220;writ of error,&#8221; but each of them involved <em>horizontal </em>appeals, not appeals to a higher authority. The common law was what judges, ruling on the basis of reason, thought it was, not what a king or higher authority said it was, so appealing to a higher authority made no sense. No new evidence or hearing was permitted on these writs, but only a review of the complex rules and procedures of the common law:</p> <blockquote><p>A party who felt that &#8220;manifest injustice&#8221; had occurred had to find justice by &#8220;proof of a technical error (verbal or procedural) in the previous trial&#8221; (52).</p></blockquote> <p>Alongside the common-law courts in England, another system of of equitable courts existed as well. This system grew out of the ecclesiastical courts, themselves developed in the tradition of the <a class="zem_slink" title="Corpus Juris Civilis" href="http://en.wikipedia.org/wiki/Corpus_Juris_Civilis" rel="wikipedia">Justinian code</a>&#8211;in other words, <em><a href="http://en.wikipedia.org/wiki/Civil_law_(legal_system)">civil law</a>.</em> In this system, which handled cases  &#8220;involving marriage and separation, probate and intestate estates, and slander and defamation,&#8221; among others, the goal was <em>justice</em>, and the procedures were more flexible (55). This system conducted appeals &#8220;in English, with depositions and interrogatories&#8221; and &#8220;was understood as a rehearing of both law and fact&#8221; (55). It drew on &#8220;an equitable theory of justice arising from medieval Roman canon law&#8221; (55). When Henry VIII replaced the Pope in England, he took on the Pope&#8217;s role as the ultimate appellate judge for courts of equity.</p> <p>The appeal also took root in the corporate bodies of trading organizations. Formed by royal charter or patent, these trading corporations were authorized to maintain their own court systems, but with the right to appeal to the Crown guaranteed. Thus, Massachusetts and Virginia, both formed as corporations, were established with the right to appeal embedded into their systems. But the appeal remained even as the corporate structure disappeared, and was used as a means to establish and maintain a central authority.</p> <p>Justice was important to Puritans. Thus, despite the historical connections to the hated Papacy, the Puritans embraced the &#8220;appeal to God&#8221; and its more secular variants as checks on injustice. Many &#8220;colonists thought equity was the point of the justice system,&#8221; and &#8220;colonial court systems did not separate equate courts like chancery from common-law courts&#8221; (68). (Interestingly, the combination of equity and common law meant that, for example, juries were required for appeals as well as for initial trials when the appeal involved matters of fact. )</p> <p>In short then, the appeal represents the strong influence that the civil law has had on the common-law system. Today I often hear civil and common law described as opposite, distinctive, almost incommensurable systems, when in fact it appears that in actuality the modern American (and English, Australian, etc.) common law system is deeply indebted to the civil law tradition.</p> "On the legal basis for English possession of North America" https://inpropriapersona.com/articles/on-the-legal-basis-for-english-possession-of-north-america/ Sun, 09 Oct 2011 22:18:32 +0000 153f1f0e5a1bc7b5413af3ca992ba720 <figure id="attachment_4364" style="max-width: 221px" class="wp-caption alignright"><a href="https://inpropriapersona.com/2011/10/on-the-legal-basis-for-english-possession-of-north-america/capitanias/" rel="attachment wp-att-4364"><img class="size-medium wp-image-4364" title="Portuguese map (1574) by Luís Teixeira" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_222/v1514417267/Capitanias_ou6f6x.jpg" alt="" width="221" height="300" /></a><figcaption class="wp-caption-text">Portuguese map (1574) by Luís Teixeira</figcaption></figure> <p>James Muldoon&#8217;s article in <a href="http://books.google.com/books?id=g6JI2Q66WLsC">The Many Legalities of Early America</a>, &#8220;Discovery, Grant, Charter, Conquest or Purchase,&#8221; discusses the surprising influence the Pope&#8217;s validation of Spanish and Portuguese possessions in the New World played in English justifications for their own American territory. But this justification was merged with an English focus on improvements to the land.</p> <p>Unlike the extensive sixteenth and seventeenth century debates by Spaniards about the legal justification of their conquest, the English generally did not seriously argue over their own rights. Instead, despite their Protestant rejection of the Pope, they borrowed his language of allowing for territorial possession of &#8220;remote and heathen lands not in the actual possession of any Christian prince&#8221; (38). The English concept of &#8220;actual possession&#8221; required improvements to be made to the land (a rather <a class="zem_slink" title="John Locke" href="http://en.wikipedia.org/wiki/John_Locke" rel="wikipedia">Lockean</a> concept, I would say), and the lack of such improvements created a &#8220;vacuum domicilium&#8221; that could be taken over by new settlers.</p> <p>They wedded the concept of <em>vaccuum domocilium</em> to their idea that they had purchased other land from the Indians. Thus, land occupied by settlers was either purchased (if it had been inhabited) or occupied through improvement (if it had not).</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f86e443b-e80a-4193-9a33-62a1ae2d5b63" alt="" /></div> "Colonial Law in Early America" https://inpropriapersona.com/articles/colonial-law-in-early-america/ Sat, 08 Oct 2011 21:35:16 +0000 01b0f7b95e105ef9bd3d5e1f27b0c643 <p><a href="http://www.amazon.com/gp/product/0195327284/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0195327284&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=7ADRTJ7DN6E6WCA2"><img class="alignright" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0195327284&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /><img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0195327284" alt="" width="1" height="1" border="0" /></a>In <a href="http://www.amazon.com/gp/product/0195327284/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0195327284&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=7ADRTJ7DN6E6WCA2">The Common Law in Colonial America, Vol. 1: The Chesapeake and New England 1607-1660</a><img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0195327284" alt="" width="1" height="1" border="0" />, William Edward Nelson writes about three main colonial legal traditions: Virginia, New England, and Maryland. These three centers drew to various degrees from English common law, but deviated from it in a number of important respects and for reasons related to their establishments and purposes. He summarizes their initial influences by noting &#8220;that Virginia was founded primarily for economic profit; New England, primarily to create a religious utopia; and Maryland, primarily to establish a haven for persecuted Roman Catholics&#8221; (Nelson 7).</p> <p>Neither Virginia nor New England established their initial legal approaches on English common law. Instead, Virginia sought to pay its investors by extracting maximum labor from local inhabitants &#8220;through intimidation and brutality,&#8221; not English law (8). New England, on the other hand, looked to &#8220;the law of God, not the law of England&#8221; as they sought to unify religion and the state and create their religious utopia (8). Maryland, on the other had, sought to protect its initial Roman Catholic settlers by immediately adopting English law and insisting on its protections as more and more Protestants immigrated.</p> <p>As the need to reassure English investors&#8211;who provided Virginia tobacco farmers the capital they needed&#8211;that they could recoup their debts grew, Virginia adopted English law. The interest was commercial, and the goal was to create predictability for investors, not to create fairness or justice for its inhabitants. As a result, the bulk of seventeenth century court cases in Virginia revolved around debt collection.</p> <p>As the importance of protection Roman Catholics lessened and as Maryland began to adopt the plantation practices of Virginia, so too it began to adopt the focus on &#8220;black-letter law&#8221; that Virginia emphasized as well. Thus rule of law in Maryland joined Virginia&#8217;s approach of committing &#8220;to government by clear, unchanging dictates that would guarantee the certainty and predictability needed to entrepreneurial investment&#8221; (11).</p> <p>The New England colonies differed in purpose and approach. They were founded on <a class="zem_slink" title="Puritan" href="http://en.wikipedia.org/wiki/Puritan" rel="wikipedia">Puritan</a> religious goals that emphasized the importance of religious involvement and the unity of church and state (53). Their farming did not consist of tobacco plantations, but rather emphasized  yeoman farmers who lived close to town and community. Their religion required adherence to community norms (which were strict), but also emphasized justice for both servants and masters. Self-restraint was key, and the community reigned in its most powerful members through increasingly codified laws. Religious belief was fundamental to the different outcome and approach in New England:</p> <blockquote><p>Puritanism and its related ideal of harmonious community &#8230; kept seventeenth-century Massachusetts from becoming the debt-ridden outpost of British colonialism that Virginia became (63).</p></blockquote> <p>New England cared about commerce, but debt collection was never a central concern of its courts. Instead, New England courts dealt with land titles, road building, and schools, as well as the collection of taxes that accompanied a focus on community and community building. English common law provided the backdrop to New England&#8217;s laws, but its colonists insisted on codification to increase fairness and reign in abuses by its leadership.</p> <p>In fact, English common law provided the backdrop to all these American colonies, but &#8220;on the ground&#8221; social forces &#8220;gave legislation a preeminence in American law that it had lacked in England&#8221; (131). Religious values gave New England&#8217;s colonies a distinct approach that strongly differed from approaches fostered by the economic conditions of Virginia and Maryland. By 1660, there was a distinctly &#8220;American&#8221; feel to each of these areas approaches to law, but there was not yet a unifying power above all of them that would draw them closer together.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=40c112d1-872c-4eed-8038-cf81fe7f85d1" alt="" /></div> "Will legal software replace lawyers?" https://inpropriapersona.com/articles/will-legal-software-replace-lawyers/ Thu, 29 Sep 2011 23:12:47 +0000 cf7ec356e96b87c2fca49716b2964998 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/80052968@N00/1466785860"><img title="polygraph" src="http://farm2.static.flickr.com/1333/1466785860_1fb9af2d24_m.jpg" alt="polygraph" width="240" height="192" /></a><figcaption class="wp-caption-text">Image by spiralstares via Flickr</figcaption></figure> </div> <p>An <a href="http://www.slate.com/articles/technology/robot_invasion/2011/09/will_robots_steal_your_job_5.html">article in Slate</a> claims:</p> <blockquote><p>While legal automation will be a boon for those who can&#8217;t afford representation, it&#8217;s bad news for lawyers. The industry is already in a slump, and law school is no longer seen as a sure path to riches. Because software will allow fewer lawyers to do a lot more work, it&#8217;s sure to drive down both price and demand.</p></blockquote> <p>My opinion? Software won&#8217;t replace lawyers, but it will reduce the demand for certain routine legal services and raise the complexity of litigation. Those without the software will be at a disadvantage. It will also cut into the work of paralegals. But not lawyers.</p> <p>(Part of this reminds me of the claims in the early 20th century that <a href="http://news.google.com/newspapers?id=39pPAAAAIBAJ&amp;sjid=ulMDAAAAIBAJ&amp;pg=1714%2C2796692">polygraph machines would replace juries</a>, since machines could judge truth of falsity and revolutionize the entire legal process. That didn&#8217;t happen, of course.)</p> <p>It&#8217;s true that being a lawyer today involves a great deal of drudge work, especially at the lower echelons, and certainly eliminating some of the most time-consuming parts of the profession has the potential to reduce the workload. But while computer programs to generate wills have cut back on the demand for bare-bones legal services, the general result, I think, has been to increase the number of written wills, not to reduce the people who consult a lawyer for more complex drafting. Similarly, I expect contract-writing tools to help create more written contracts, not to reduce the important of lawyers who write and review more complex deals. The result will, hopefully, be more routinized, written business processes&#8211;but may result in freeing lawyers to spend more time drafting complex documents that exceed the abilities of programs to interpret alone.</p> <p>The basics of document review can already be outsourced abroad in some cases, and using machine processing is rather similar. It helps with the routine and frees up time for the more complex.</p> <p>The law is a complex human construction because society is a complex human construction. As long as it stays that way (and as long as people form a society, it will), it will take humans versed in its complexities to manage it fully.</p> <p>&nbsp;</p> <p>&nbsp;</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=601ed7f6-6648-4f7f-a8ac-e8a204956bdb" alt="" /></div> "Early lawyering in colonial America" https://inpropriapersona.com/articles/early-lawyering-in-colonial-america/ Wed, 28 Sep 2011 23:29:06 +0000 752075952f8241207bf07efcf6f5e648 <p>In <a href="http://www.amazon.com/gp/product/0195081803/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=9325&amp;creativeASIN=0195081803&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=EYAZRD75TH57JUR2" rel="nofollow">The Magic Mirror: Law in American History</a><img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0195081803" alt="" width="1" height="1" border="0" />, Kermit Hall and Pater Karsten write:</p> <p><a href="http://www.amazon.com/gp/product/0195081803/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=9325&amp;creativeASIN=0195081803&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=EYAZRD75TH57JUR2" rel="nofollow"><img class="alignright" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0195081803&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /></a></p> <blockquote><p>The [Plymouth] colony&#8217;s first trained lawyer, Thomas Lechford, did little to instill enthusiasm. He was disbarred for trying to influence a jury. Antilawyer sentiment was pervasive elsewhere as well, and the &#8220;ancient English prejudice against lawyers secured new strength in America.&#8221; The framers of the <a class="zem_slink" title="Fundamental Constitutions of Carolina" href="http://en.wikipedia.org/wiki/Fundamental_Constitutions_of_Carolina" rel="wikipedia">Fundamental Constitutions</a> of the Carolinas in 1669 declared it a &#8220;base and vile thing to plead for money or reward.&#8221; Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. Early lawyers were often laymen helping friends or women serving the legal interests of absent husbands. (Hall 21-22)</p></blockquote> <p>Still, despite the opposition to lawyers&#8211;perhaps arising from the complex and seemingly arbitrary rules of the early common-law system&#8211;the complexity of colonial legal life (each part of the colonies tended to have its own legal rules which more-or-less approximated some part of the very complex English system), and the importance of smoothing out trade, meant that lawyers became increasingly valued. Although there were no law schools, a &#8220;rough apprenticeship&#8221; process, along with self-teaching, emerged to prepare attorneys.</p> <p>But unlike in England, according to Hall and Karsten, there was never sufficient legal business to justify splitting the profession into barristers and solicitors. Instead, &#8220;American lawyers survived as generalists&#8221; (Hall 22).</p> <p>It was not until after the Revolution that some moves to formalize legal training emerged, but even though Harvard, Yale and Columbia started legal training in the mid-nineteenth century, it wasn&#8217;t until the late nineteenth and early twentieth century that the law school system as we know it today developed.<img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0195081803" alt="" width="1" height="1" border="0" /></p> "Why do legal history? First remarks on Kermit Hall’s The Magic Mirror" https://inpropriapersona.com/articles/why-do-legal-history-first-remarks-on-kermit-halls-the-magic-mirror/ Thu, 22 Sep 2011 19:29:45 +0000 94b00490b3dc6e609a56d0c51a0faa0e <figure id="attachment_4228" style="max-width: 197px" class="wp-caption alignright"><a href="https://inpropriapersona.com/2011/09/why-do-legal-history-first-remarks-on-kermit-halls-the-magic-mirror/magic-mirror/" rel="attachment wp-att-4228"><img class="size-medium wp-image-4228" title="The Magic Mirror by Kermit Hall" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_198/v1514417278/magic-mirror_ultes8.jpg" alt="" width="197" height="300" /></a><figcaption class="wp-caption-text">The Magic Mirror by Kermit Hall and Peter Karsten</figcaption></figure> <p>The question of why we should do legal history at all is one that has occurred to me a number of times over the last few years. I have advocated&#8211;as I mentioned in <a href="https://inpropriapersona.com/2011/09/first-remarks-on-g-edward-whites-the-american-judicial-tradition/">previous remarks</a>&#8211;the point of view that legal history provides access to more than just changes in statute or changes in judicial viewpoints. Legal history reflects broader and deeper social forces and social contexts. Each case reflects individual concerns of particular people at particular moments in time&#8211;but the judicial decisions (especially the appellate opinions) express larger social concerns beyond the specific <a href="http://en.wikipedia.org/wiki/Case_or_Controversy_Clause">case or controversy</a> .</p> <p>In <em><a href="http://books.google.com/books/about/The_magic_mirror.html?id=118kAQAAIAAJ">The Magic Mirror: Law in American History</a>, </em>Kermit Hall quotes former Supreme Court Justice <a href="http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr.">Oliver Wendell Holmes, Jr.</a> (1902-1932) to support his version of my point:</p> <blockquote><p>This abstraction called the Law is a magic mirror, [wherein] we see reflected, not only our own lives, but the lives of all men that have been!</p></blockquote> <p>Hall sums up his perspective on what the law is by saying that &#8220;law is a system of social choice, one in which government provides for the allocation of resources, the legitimate use of violence, and the structuring of social relationships&#8221; (Hall 1). Law is part of a social context: &#8220;Without society we need no law; without law we would have no society&#8221; (Hall 1).</p> <p>Hall is points out two different approaches to legal history, one internalist and one externalist (a distinction science studies scholars also <a href="http://en.wikipedia.org/wiki/Historiography_of_science#The_Hessen_thesis_and_the_birth_of_externalism">make</a>). Internalist legal history looked at the &#8220;black-box&#8221; development of legal rules in a straightforwardly&#8211;if complex&#8211;chronological fashion. Externalist legal histories address larger questions of casual relationships: &#8220;We want to know the law by what it has done, or failed to do, or by what has been done to it, rather than simply by what it was&#8221; (Hall 2).</p> <p>Law, then, is individual and personal, but &#8220;its meaning reaches to the values of society&#8221; as well (Hall 2). We must, says Hall&#8211;and I find myself in agreement&#8211;pursue both an internalist understanding of the rules and processes of law as well as an externalist understanding of the laws connection to society as a whole.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=edd089cc-4fc2-477d-9cca-6150adb98840" alt="" /></div> "Was early Supreme Court Justice John Marshall an originalist?" https://inpropriapersona.com/articles/was-early-supreme-court-justice-john-marshall-an-originalist/ Sun, 18 Sep 2011 23:19:23 +0000 485614cd7731d43fc773e4f586d6bb88 <figure id="flickrImage_1" style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/skrobola/" rel="nofollow" target="_blank"><img src="http://farm1.static.flickr.com/44/180922614_035fd9b1d3_b.jpg" alt="" width="240" height="154" /></a><figcaption class="wp-caption-text">John Marshall, Philadelphia Museum of Art © by MCS@flickr</figcaption></figure> <p>The question of whether <a class="zem_slink" title="John Marshall" href="http://en.wikipedia.org/wiki/John_Marshall" rel="wikipedia">John Marshall</a>, Chief Justice of the United States Supreme Court from 1803-1835, was an originalist is, of course, anachronistic, as the term had not yet been invented during his lifetime. Still, given the ongoing controversy regarding judicial interpretation today, it&#8217;s an interesting question to ask about one of the foundational justices in American jurisprudence.</p> <p>Arguably, the original 1789 Constitution had produced a flawed judiciary: the court at the time of Marshall&#8217;s assumption of the role of Chief Justice in 1801 was &#8220;beleaguered by partisan strife and internal doubts about its role in the merging American government&#8221; (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 15).  It was John Marshall&#8217;s interpretation of the federal court&#8217;s Constitutional role in 1803&#8217;s <em><a class="zem_slink" title="Marbury v. Madison" href="http://en.wikipedia.org/wiki/Marbury_v._Madison" rel="wikipedia">Marbury v. Madison</a></em> that granted it equal status alongside the executive and legislative branches as he asserted, and justified, &#8220;an active, expansive role for the federal judiciary&#8221; (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 15). Marshall&#8217;s approach drew on a fundamental, though contradictory, belief of his time: &#8220;Man was fit to govern himself, but he could not be trusted to exercise self-government in a moderate and disinterested fashion&#8221; (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 18). That was the point having a republic and, similarly, a judiciary.</p> <p>Despite his profound role in shaping the judiciary into an equal partner in American governance, Marshall did not believe judges &#8220;made&#8221; law in the modern sense (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 23). Instead, Marshall saw &#8220;legal principles as omnipresent and immutable&#8221;&#8211;and in this sense, the Constitution, once properly interpreted, would never change over time without revision (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 23).  Judges should look to original texts and ascertain the meaning, but they must also infuse that with universal legal principles found beyond the text. He thus believed both in fixed meaning <em>and</em> in the judicial power to go &#8220;beyond the letter of the law&#8221; as written (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 24).</p> <p>Marshall&#8217;s opinion in <em><a href="http://en.wikipedia.org/wiki/Gibbons_v._Ogden">Gibbons v. Ogden</a></em> reflected this dual approach. He began with a general principle: delegated powers could be &#8220;liberally construed&#8221; <em>because</em> the framers and the people &#8220;intended to use words &#8216;in their natural sense'&#8221; (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 32). If the sense over time had become imperfect, then one could clarify it by recourse to the document and by reference to &#8220;ordinary,&#8221; &#8220;common&#8221; and &#8220;natural&#8221; usage (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 32). In this way, Marshall embraced (in a sense, at least) originalism, while rejecting strict constructionism.</p> <p>Of course, given how close Marshall was to the time of the original framing, he never had to deal with the more modern question of <em>which</em> ordinary meaning is more important: the one envisioned by the writers, or the one expected by people at the time of the case or controversy?</p> <p>But the main difference between a modern originalist and Marshall, though, is his focus on the importance of omnipresent and immutable legal <em>principles</em>. These were more important even what was written, and formed the beginning point for Marshall&#8217;s typical decisions.  He focused first on these general principles, then logically reasoned from there: his &#8220;original bias,&#8221; according to his colleague Story, &#8220;was to general principles and comprehensive views, rather to technical or recondite learning.&#8221; (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 13)</p> <p>He drew, then, on two sources of law for his decisions:</p> <ol> <li>Universal and immutable natural rights, generally codified in the Constitution. Despite their codification, though, &#8220;American citizens had not given up those other rights conferred upon man in his natural state&#8221; (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 20). He thus grounded his rulings both in the Constitution and in &#8220;general principles which are common to our free institutions&#8221; (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 20). Marshall thus separates himself from true, modern originalists who might look to the words as written combined with the context of their writing. He would look at what was written, but then to <em>universal </em>ideals of law, <em>not </em>to the context or meaning attached by the writer.</li> <li>Precedents, although still important, were not as valuable to Marshall. On a practical level, access to English cases was limited by distance and publishing costs, and few cases had yet been decided yet in the United States. Additionally, the American system was distinctly different from the English one, and there were very limited cases that interpreted the American constitution (<a href="http://books.google.com/books/about/The_American_judicial_tradition.html?id=RTky8bDIXy0C">White</a> 20). He returned to precedents later as more decisions accumulated, but always liked to ground them in broader principles.</li> </ol> <p>In short, Marshall was simply not a modern judge at all. He spoke at times like an originalist, while at the same time emphasizing the power of the <em>judiciary</em> to &#8220;<a href="http://en.wikipedia.org/wiki/Marbury_v._Madison">say what the law is</a>&#8221; and not to merely defer to the other branches. But he looked to the &#8220;natural&#8221; meaning of words as they were intended to be used, and focused on <em>finding </em>and not on <em>making </em>law. He remains a powerful influence on the modern judicial system, even if no one today would reason in the way he did then.</p> "First remarks on G. Edward White’s The American Judicial Tradition" https://inpropriapersona.com/articles/first-remarks-on-g-edward-whites-the-american-judicial-tradition/ Thu, 15 Sep 2011 22:34:40 +0000 f7ee1748629527793316f4766d893962 <p><a href="https://inpropriapersona.com/2011/09/first-remarks-on-g-edward-whites-the-american-judicial-tradition/american-legal-tradition-cover/" rel="attachment wp-att-4187"><img class="alignright size-medium wp-image-4187" title="The American Legal Tradition (Cover)" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_201/v1514417091/american-legal-tradition-cover_qwfkhw.jpg" alt="" width="200" height="300" /></a>I&#8217;m reading G. Edward White&#8217;s <em><a href="http://books.google.com/books?id=RTky8bDIXy0C">The American Judicial Tradition: Profiles of Leading American Judges</a></em> as part of my general background reading on American legal history. <a class="zem_slink" title="Lawrence M. Friedman" href="http://en.wikipedia.org/wiki/Lawrence_M._Friedman" rel="wikipedia">Lawrence Friedman</a> may argue that &#8220;<a href="http://legalhistoryblog.blogspot.com/2011/09/q-with-lawrence-friedman-on-teaching.html">[t]here really isn&#8217;t a canon for legal history</a>,&#8221; but I think White&#8217;s book at least comes close.</p> <p>It is, in a sense, a traditional historical work, and seeks to communicate &#8220;broad generalizations&#8221; about the &#8220;essences&#8221; of the &#8220;subjects and their times&#8221; (White 3). Many current historians might quibble about the possibility of such a project, but it is, I think, a fundamental pretense (at least) for any work that attempts to make sense of broad swaths of history.</p> <p>Core to his entire analysis is the idea that the first Chief Justice of the Supreme Court, <a class="zem_slink" title="John Marshall" href="http://en.wikipedia.org/wiki/John_Marshall" rel="wikipedia">John Marshall</a>, established a new and enduring <em>American</em> legal tradition that continues today. Marshall, White argues, establish three key elements:</p> <ul> <li>a &#8220;tension between independence and accountability&#8221;;</li> <li>a &#8220;delicate and unique relation to politics&#8221;;</li> <li>and a &#8220;trade-off&#8221; between the power and independence of a judge and the restrains placed on the judiciary (White 3-4).</li> </ul> <p>Although Marshall helped establish an enduring American legal tradition, jurisprudential theories have changed over time. Especially important, according to White, is the shift from a nineteenth century &#8220;oracular&#8221; view of judge as &#8220;law finder&#8221; to the twentieth century view of judge as &#8220;law maker&#8221; (White 4). White ends his work with the <a class="zem_slink" title="William Rehnquist" href="http://en.wikipedia.org/wiki/William_Rehnquist" rel="wikipedia">Rehnquist Court</a>, but I am left wondering how well this distinction continues to work today given conservative justices like <a class="zem_slink" title="Antonin Scalia" href="http://en.wikipedia.org/wiki/Antonin_Scalia" rel="wikipedia">Antonin Scalia</a>, who seems opposed to law making by judges and embraces instead an &#8220;originalist&#8221; approach to constitutional interpretation. This seems, in a sense, to be more like the nineteenth century&#8217;s approach than the twentieth&#8217;s.</p> <p>White&#8217;s biographical approach to history could easily fall into &#8220;great man&#8221; historiography, despite White&#8217;s assertion that he advances no such &#8220;&#8216;great man&#8217; theory&#8221; (White 6). But he seeks less to glorify individual judges than to use them as a means of &#8220;reflect[ing] the governing social and intellectual assumptions of various periods of American history&#8221; (White 6). White does what so many historians love to do: he rejects theory as a defining force in his work, and instead argues that he&#8217;s not pursuing one theory of history over another, but rather &#8220;convey[ing] an understanding of what it has meant to be an American appellate judge&#8221; (White 6).</p> <p>White strongly suggests&#8211;and I myself have at least somewhat advocated&#8211;that the relation between the judiciary and &#8220;its social context is one of total integration&#8221; (White 6). In other words, the words of appellate judges is at least as much about larger society as it is about the specific case, controversy, or judge. This last point is a key one for any historian seeking to look at legal history as a means of access to broader historical issues, and it&#8217;s one that I look forward to developing further&#8211;and for which I hope that I can continue to find support.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=c0abb356-a573-4b87-b23c-b72620bc6f64" alt="" /></div> "Access to federal court records gets less free" https://inpropriapersona.com/articles/access-to-federal-court-records-gets-less-free/ Thu, 15 Sep 2011 00:58:25 +0000 5087b596d0c717d22cb3ef80a0fbb419 <p><a href="https://inpropriapersona.com/2011/09/access-to-federal-court-records-gets-less-free/1000px-us-courts-administrativeoffice-seal-svg/" rel="attachment wp-att-4179"><img class="alignright size-thumbnail wp-image-4179" title="US Courts Administrative Office Seal" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_1000,w_1000,x_0,y_0/h_150,w_150/v1514417076/1000px-US-Courts-AdministrativeOffice-Seal.svg__rihzqo.png" alt="" width="150" height="150" /></a>As someone aspiring to be a legal historian, I&#8217;m generally impressed by the increasing availability of free access to legal documents (thanks <a href="http://scholar.google.com/">Google Scholar</a>!). This is actually a worldwide trend (thanks <a href="http://www.worldlii.org/">WorldLII</a> and friends!), which I am grateful for every time I try to do transnational legal research. I would argue that free&#8211;not just &#8220;open,&#8221; but truly <em>free<strong>&#8212;</strong></em>access to raw legal materials is important for a functioning democracy that respects the rule of law. Transparent court proceedings and outcomes help bolster the credibility of the legal process (provided it is credible and functional, of course).</p> <p>So it&#8217;s always been distressing to me that <a class="zem_slink" title="PACER" href="http://pacer.psc.uscourts.gov/" rel="homepage">PACER</a>, which provides access to federal court records beyond just the final decisions that Google Scholar (or even LexisNexis and Westlaw) specialize in. Sure, for most legal work, the final decisions matter the most, but for historians and other scholars, seeing the party materials and &#8220;raw&#8221; details of the cases provides useful data for analysis. I had always hoped that PACER&#8211;<a href="http://arstechnica.com/tech-policy/news/2011/09/federal-courts-jack-up-fees-for-online-access-by-25-percent.ars">which I hear runs a surplus anyway</a>&#8211;would trend <em>downward</em> in price as the cost of delivering electronic access decreases. Instead comes this news:</p> <blockquote><p>The cost of electronic access to court files through the Public Access to Court Electronic Records program, better known as PACER, will rise to 10 cents per page from the current 8 cents per page, the Judicial Conference said.</p> <p>via <a href="http://www.politico.com/blogs/joshgerstein/0911/Federal_courts_to_hike_records_fees_25_.html">Federal courts to hike records&#8217; fees 25% &#8211; Josh Gerstein &#8211; POLITICO.com</a>.</p></blockquote> <p>I suppose it&#8217;s a nice gesture that they will waive the fees if you spend under $15/year, and I suppose the role of grant money is to fund my access to such materials, but honestly, I don&#8217;t think this is a good trend. I suppose the courts were focused on for-profit lawyers&#8211;or more specifically, on extracting a bit of silver from those lawyers&#8211;when they considered the pricing for PACER, and I see their point. This is the kind of necessary decision when taxes don&#8217;t fully fund government infrastructure (like the courts), but I lament the move to extract more capital from what ought to be <em>public</em> records.</p> <p>The trend should be towards more <a class="zem_slink" title="Open government" href="http://en.wikipedia.org/wiki/Open_government" rel="wikipedia">open government</a> and open courts, not the reverse.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=449e9759-eaa1-41ac-85c7-1d065eb633b5" alt="" /></div> "Further reflections on the nature of scientific evidence" https://inpropriapersona.com/articles/further-reflections-on-the-nature-of-scientific-evidence/ Tue, 09 Aug 2011 19:40:49 +0000 8f4a9e925b395435dbbd6d63618e2317 <p><img class="alignright" title="VISU Summer 2011" src="http://farm7.static.flickr.com/6072/6026706340_ae8781d143_m.jpg" alt="" width="240" height="205" />For two weeks this July, I participated in a conference/summer session in Vienna (VISU) on the nature of <a class="zem_slink" title="Scientific evidence" href="http://en.wikipedia.org/wiki/Scientific_evidence" rel="wikipedia">scientific evidence</a> (see also <a href="https://inpropriapersona.com/2011/07/initial-reflections-on-the-nature-of-scientific-evidence/">my initial reflections after the first week</a>). The program brought together students and lecturers from a number of disciplines, including <a class="zem_slink" title="Philosophy of science" href="http://en.wikipedia.org/wiki/Philosophy_of_science" rel="wikipedia">philosophy of science</a>, <a class="zem_slink" title="History of science" href="http://en.wikipedia.org/wiki/History_of_science" rel="wikipedia">history of science</a>, cognitive science/psychology, business, literature, and more.</p> <p>I had several goals for my time in Vienna:</p> <ol> <li>I wanted to make international connections with colleagues around the world;</li> <li>I wished to develop my thinking on the relation of history with evidence&#8211;preferably with a bit of legal context;</li> <li>since my philosophical background in regards to science needs work, I wanted to find new ways to approach the philosophy of science that would help me to develop my understanding and appreciation of the field.</li> </ol> <p>How well did this summer&#8217;s VISU help me to achieve these goals? Quite well!</p> <p>First, I met many wonderful people from universities around the world. Most, perhaps unsurprisingly, were from Europe or the United States, and they represented a wide variety of disciplinary approaches to science and evidence. For example, I was able to connect with graduate students working on similar questions as I am from a civil law context, providing a useful comparative potential to add to my own work.</p> <p>Second, I was thrilled that the focus on the legal context was much deeper than I expected. David Lagnado of <a class="zem_slink" title="University College London" href="http://maps.google.com/maps?ll=51.5247888889,-0.133577777778&amp;spn=0.01,0.01&amp;q=51.5247888889,-0.133577777778 (University%20College%20London)&amp;t=h" rel="geolocation">UCL</a> provided an especially new and intriguing look at the ways in which juries evaluate evidence in the common-law courtroom, and introduced me to the use of <a class="zem_slink" title="Bayesian inference" href="http://en.wikipedia.org/wiki/Bayesian_inference" rel="wikipedia">Bayesian analysis</a> in evidentiary analysis.</p> <p>Third, the 10 or so graduate students coming from the discipline of the philosophy of science helped me to appreciate the philosophical debates more fully. I may still not fully embrace what feels to me like a de-contextualized approach to theory, but I can better appreciate the goal and reasons for trying to describe and explain scientific theories.</p> <p>Some more highlights of the two weeks:</p> <ul> <li>Bayesian networks as <em>representations</em> of real-world evidential reasoning. Do people really reason this way? Or is this the ideal way we <em>should</em> do probabilistic reasoning? David Lagnado suggests that people may really use this approach&#8211;at least as a qualitative matter&#8211;but that we don&#8217;t do so well when it comes to quantitative weighing of probabilities.</li> <li>The distinctions between a civil law approach to scientific experts (generally appointed by the court) vs. the common law one (represent the parties). The civil law approach appears cleaner, but may well bury the issue a bit further underground&#8211;and the need to validate the science still exists, it may just not play out <em>in the courtroom.</em></li> <li>Tal Golan asserts that the statistical expert&#8217;s growing role as gatekeeper of &#8220;true causes&#8221; is co-related with the trial judge&#8217;s new role as the gatekeeper of &#8220;true science.&#8221;</li> </ul> <p>All in all, the two weeks was an excellent experience, and I would recommend it to any other graduate students working in related fields.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/07/initial-reflections-on-the-nature-of-scientific-evidence/">Initial reflections on the nature of scientific evidence</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2ae36e83-b8f7-4be1-9b09-f94ae7cf2fb9" alt="" /></div> "Facebook and Twitter and Google Plus… oh my!" https://inpropriapersona.com/articles/facebook-and-twitter-and-google-plus-oh-my/ Mon, 25 Jul 2011 18:18:50 +0000 015297190c1377b60d2b6b58efd870b7 <p><a href="http://www.flickr.com/photos/wistaston/4703355817/in/photostream/"><img class="alignright" title="&quot;Squirrel gossiping over the fence,&quot; by Flickr user Joseph Swan. Used under a Creative Commons license." src="http://farm2.static.flickr.com/1294/4703355817_c2e5404cd3_m.jpg" alt="" width="240" height="192" /></a>So now we&#8217;ve got three&#8211;well, more like four&#8211;big players in the social networking space: <a class="zem_slink" title="Facebook" href="http://facebook.com" rel="homepage">Facebook</a>, <a class="zem_slink" title="Twitter" href="http://twitter.com" rel="homepage">Twitter</a>, <a title="Google Plus" href="https://plus.google.com/">Google Plus</a>, and <a class="zem_slink" title="LinkedIn" href="http://www.linkedin.com" rel="homepage">LinkedIn</a> (sorry <a class="zem_slink" title="MySpace" href="http://myspace.com/" rel="homepage">MySpace</a>, <a title="Live.com, from Microsoft" href="http://live.com">Live.com</a>, <a href="http://yahoo.com">Yahoo!</a>, <a class="zem_slink" title="Bebo" href="http://bebo.com" rel="homepage">Bebo</a>, <a class="zem_slink" title="Friendster" href="http://www.friendster.com" rel="homepage">Friendster</a>, <a class="zem_slink" title="XING" href="http://www.xing.com" rel="homepage">XING</a>, and others). Add to that a few other common options&#8211;the backyard fence, email, telephone, and <a class="zem_slink" title="Carrier pigeon" href="http://en.wikipedia.org/wiki/Carrier_pigeon" rel="wikipedia">carrier pigeon</a>&#8211;and the choices of where to share the details on your latest (technology) crush appear insurmountably complex.</p> <p>But really, each of these has choices is distinct, and in many cases their use-cases do not overlap. Carrier pigeons, for example, are really point-to-point messaging mechanisms, unless you have a flock&#8211;and they take time to breed, so they are a poor choice if you have need to keep people updated on a variety of different topics. And unlike the owls of Harry Potter, carrier pigeons go to places and not people&#8211;so tracking down your significant other in either Greece or Italy&#8211;why won&#8217;t they call?&#8211;is out. (You may, of course, find different ways to make these work for you&#8211;in the digital age, square pegs can be refactored to fit in round holes, after all.)</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 266px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Facebook.svg"><img title="Facebook logo" src="http://upload.wikimedia.org/wikipedia/commons/thumb/0/06/Facebook.svg/266px-Facebook.svg.png" alt="Facebook logo" width="266" height="100" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <h3>Facebook</h3> <p>Facebook is the ideal place for keeping in touch with real people I&#8217;ve really met, especially if I&#8217;m likely to lose track of them otherwise. It&#8217;s geographically diverse, lets me share enough to give people a sense they&#8217;ve got an idea what I&#8217;m up to, and (despite its best efforts otherwise) lets me otherwise stay private (with caveats). So who do I connect with on Facebook? Friends (of various levels) from high school, college, postgrad. Friends&#8211;not professional colleagues&#8211;from work. Tricky decisions of categorization abound, of course: is this colleague enough of a friend for me to connect with them on Facebook, or do they belong on LinkedIn only? Segregating people into groups with various privacy settings help, of course, as does not sharing things I don&#8217;t want the public to possibly see. Sure, this is friend-stuff, but nothing I put on Facebook would be too embarrassing, or cost me a job. Facebook has been pushing pages (AP, PBS, BBC, business generally) that share non-personal information, but I&#8217;m increasingly finding this a distraction from the reason I use Facebook: people.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 150px" class="wp-caption alignright"><a href="http://www.crunchbase.com/company/linkedin"><img title="Image representing LinkedIn as depicted in Cru..." src="http://www.crunchbase.com/assets/images/resized/0001/1055/11055v8-max-450x450.png" alt="Image representing LinkedIn as depicted in Cru..." width="150" height="68" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> </div> <h3>LinkedIn</h3> <p>LinkedIn has been touted as the professional version of Facebook, but that&#8217;s only partly true. LinkedIn is not really about sharing day-to-day details about me, but rather about highlighting my accomplishments and work. But beyond that, it&#8217;s mostly a Rolodex of up-to-date business cards of people I&#8217;ve dealt with professionally. I will connect with any colleague (or one of my undergrads) on LinkedIn without hesitation, unlike on Facebook. In terms of privacy, well, the point is to be visible and findable professionally. So that&#8217;s what goes up there. No home addresses, no home telephone numbers, just business contact details.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 220px" class="wp-caption alignright"><a href="http://www.crunchbase.com/company/twitter"><img title="Image representing Twitter as depicted in Crun..." src="http://www.crunchbase.com/assets/images/resized/0000/2755/2755v30-max-450x450.png" alt="Image representing Twitter as depicted in Crun..." width="220" height="61" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> </div> <h3>Twitter</h3> <p>Twitter is for link sharing and quick conversations (very quick, and very short) with absolutely anyone I find remotely interesting. I don&#8217;t refollow anyone who follows me, only those I think are interesting. I share things I want to broadcast with the world (but am too polite to get a bullhorn). Sometimes it&#8217;s personal, sometimes professional, but always with the idea that anyone might read it. It&#8217;s great for more distant connections with people I may or may not ever meet, but who say and write about interesting things.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 250px" class="wp-caption alignright"><a href="http://www.crunchbase.com/company/google"><img title="Image representing Google as depicted in Crunc..." src="http://www.crunchbase.com/assets/images/resized/0002/9578/29578v7-max-450x450.jpg" alt="Image representing Google as depicted in Crunc..." width="250" height="99" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> </div> <h3>Google Plus</h3> <p>Google Plus is the new player, but it brings in some of the best of both Twitter and Facebook. Yes, I can put my actual friends in circles and easily limit what I share with just them (so that&#8217;s a bit like Facebook, but more focused). No, not everyone I know on Facebook is on Google Plus (and may never be). Google Plus also lets me follow people I&#8217;ve never met who say interesting things, like Twitter, but it emphasizes longer posts and more detailed, threaded conversations&#8211;without forcing me to dance with privacy settings as on Facebook, and without assuming these people are actually my friends (even if they could be). In many respects, I&#8217;m finding that it challenges quick-blogging services like Posterous and Tumblr more than Facebook or LinkedIn. It does seem a potential threat to Twitter, which I am finding myself more and more viewing as a social link sharing service as opposed to a discussion mechanism (but it&#8217;s GREAT for that).</p> <h3>Summary</h3> <p>So, here it is in short form:</p> <p><strong>Facebook</strong>: real people, real sharing of personal (but not too personal) information. If you actually know me in &#8220;real life,&#8221; friend me. If not, go elsewhere. I share semi-personal stuff here (what I had for dinner and who made it).</p> <p><strong>LinkedIn</strong>: real people doing real business networking. If I&#8217;ve met you in a professional capacity, connect with me. If not, well, tell me why we can do business! I share only professional info here.</p> <p><strong>Twitter</strong>: on the Internet, no one knows if you&#8217;re a dog, but we do care if you have something interesting to share. If you do, follow me and I might follow you back. If you don&#8217;t, follow me and I won&#8217;t follow you back. I share thoughts and links here.</p> <p><strong>Google Plus</strong>: real people (for now) sharing what they found interesting today, including articles, thoughts, stories, and photos. If you actually know me, I might add you to my Friends circle; if not, but you are interesting, you&#8217;ll make Following. Please give me commentary with your links!</p> <p>Maybe next week I&#8217;ll explain how I use carrier pigeons.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://mbcalyn.wordpress.com/2011/07/19/google-will-be-squeezed-out-of-social-world-says-linkedin-ceo-computerworld/">Google+ will be squeezed out of social world, says LinkedIn CEO &#8211; Computerworld</a> (mbcalyn.wordpress.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20131229143134/http://scalableintimacy.com/google-plus-will-hurt-twitter-more-than-facebook/">It&#8217;s Google Plus vs. Twitter, Not Facebook</a> (scalableintimacy.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/08/different-social-networks-for-different-purposes/">Different social networks for different purposes</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=9b6cdcee-c2c0-4d91-b2f9-d793d876a877" alt="" /></div> "Legal reasoning by analogy" https://inpropriapersona.com/articles/legal-reasoning-by-analogy/ Fri, 15 Jul 2011 09:06:20 +0000 e755f2f61bcbfb3ae6719ce9ca32f411 <p>My <a href="http://www.univie.ac.at/ivc/VISU/">VISU</a> presentation on reasoning in analogy in Warren and Brandeis&#8217; famous <a href="http://www.amazon.com/Right-Privacy-Legal-Legends-ebook/dp/B003HS5NM2/ref=sr_1_1?ie=UTF8&amp;m=AG56TWVU5XWC2&amp;s=digital-text&amp;qid=1271628440&amp;sr=1-1">1890 law review article on privacy</a>.</p> <div><object style="width: 420px; height: 323px;" width="320" height="240" classid="clsid:d27cdb6e-ae6d-11cf-96b8-444553540000" codebase="http://download.macromedia.com/pub/shockwave/cabs/flash/swflash.cab#version=6,0,40,0"><param name="allowfullscreen" value="true" /><param name="menu" value="false" /><param name="src" value="http://static.issuu.com/webembed/viewers/style1/v1/IssuuViewer.swf" /><param name="flashvars" value="mode=embed&amp;viewMode=presentation&amp;layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&amp;showFlipBtn=true&amp;documentId=110715085114-d2e01f259dec4992935e1eaa6ac61321&amp;docName=privacy-analogy-narrative&amp;username=krisnelson&amp;loadingInfoText=Analogy%20in%20the%20Common%20Law&amp;et=1310722969390&amp;er=49" /><embed style="width: 420px; height: 323px;" width="320" height="240" type="application/x-shockwave-flash" src="http://static.issuu.com/webembed/viewers/style1/v1/IssuuViewer.swf" allowfullscreen="true" menu="false" flashvars="mode=embed&amp;viewMode=presentation&amp;layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&amp;showFlipBtn=true&amp;documentId=110715085114-d2e01f259dec4992935e1eaa6ac61321&amp;docName=privacy-analogy-narrative&amp;username=krisnelson&amp;loadingInfoText=Analogy%20in%20the%20Common%20Law&amp;et=1310722969390&amp;er=49" /></object></p> <div style="width: 420px; text-align: left;"><a href="http://issuu.com/krisnelson/docs/privacy-analogy-narrative?mode=embed&amp;viewMode=presentation&amp;layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&amp;showFlipBtn=true" target="_blank">Open publication</a> &#8211; Free <a href="http://issuu.com" target="_blank">publishing</a> &#8211; <a href="http://issuu.com/search?q=brandeis" target="_blank">More brandeis</a></div> </div> <p>I think analogy reflects a desire to economize on thought. Thus, if we construct evidential reasoning on the basis of, say, <a class="zem_slink" title="Bayesian network" href="http://en.wikipedia.org/wiki/Bayesian_network" rel="wikipedia">Bayesian networks</a>, then&#8211;instead of creating a whole new network to reflect a new situation&#8211;we simply build on an old network, and replace nodes with new facts, build a few nodes, and generally spiff things up.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="float: right;" src="http://img.zemanta.com/pixy.gif?x-id=534a76d0-5404-4d80-a501-549bf6beb563" alt="" /></div> "Bayesian networks and criminal defense" https://inpropriapersona.com/articles/bayesian-networks-and-criminal-defense/ Sat, 09 Jul 2011 14:20:05 +0000 b08107ebbf7a3a865661a088d6eebf7b <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://en.wikipedia.org/wiki/File:SimpleBayesNet.svg"><img title="A simple Bayesian network" src="http://upload.wikimedia.org/wikipedia/en/thumb/0/0e/SimpleBayesNet.svg/300px-SimpleBayesNet.svg.png" alt="A simple Bayesian network" width="300" height="170" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>I have begun to consider the utility of formal methods of evidential evidence mapping. <a href="http://www.ucl.ac.uk/lagnado-lab/david_lagnado.html">David Lagnado</a> has presented Bayesian methodologies to us here in Vienna for the last week. Such an approach tends to be math-intensive in its quantitative form, but is powerful as well in its graphical, non-mathematic form. It is reminiscent of <a href="http://en.wikipedia.org/wiki/John_Henry_Wigmore">Wigmore&#8217;s</a> early 20th century graphical approach to mapping evidence, but is in many respects less complex and more powerful. Additionally, even without deep mathematical knowledge, the formulas are useful in any presentation of statistics in a courtroom, and can help avoid common reasoning fallacies (like the &#8220;<a href="http://en.wikipedia.org/wiki/Prosecutor's_fallacy">prosecutor&#8217;s fallacy</a>&#8220;).</p> <p>Whether people actually <em>think</em> in Bayesian terms is unclear. What is more clear is that Bayesian tools help lay bare some of the heuristic shortcuts people take when dealing with complex evidence (such as in legal cases). We tend, for example, to over-value high-probability evidence by conflating, say, a fingerprint match with guilt, rather than considering alternative hypothesis (the fingerprint is a match, but was deposited at a different time). We also tend to completely ignore low probability evidence, collapse variables and possibilities into singular possibilities, leave out weak links, and downplay absent information entirely. All of this is critical knowledge for any trial attorney to keep in mind, especially when dealing with jurors.</p> <p>Just always remember that evidence is &#8220;irreducibly contextual,&#8221; in the words of Hasok Chang. We simply cannot control all the variables, or even imagine all the variables. Failing to be aware of this leads to many of the <a class="zem_slink" title="Fallacy" href="http://en.wikipedia.org/wiki/Fallacy" rel="wikipedia">logical fallacies</a> that Lagnado discussed when explaining Bayesian approaches to evidence, since many problems emerge if one fails to take this into account (whether that&#8217;s in the public health context, a legal case, or when deciding on the best cafe in Vienna). This means that however effective your Bayesian map may be, it&#8217;s easy to leave out key aspects. Do not assume your map is complete.</p> <p>Relatedly, Bayesian networking&#8211;especially when one expects to actually calculate anything, rather than simply graphing&#8211;are deeply dependent on the &#8220;<a href="http://en.wikipedia.org/wiki/Prior_probability">priors</a>.&#8221; Priors represent the probability of an event occurring, and generally reflect subjective assessments of experts.</p> <p>In a sense, needing priors simply <em>pushes</em> back complex and subjective calculations further, and this is a major criticism of the approach. How does one calculate how many people smother their children in the U.K. each year (a necessary prior in calculating aspects of the <a class="zem_slink" title="Sally Clark" href="http://en.wikipedia.org/wiki/Sally_Clark" rel="wikipedia">Sally Clark</a> case). Lagnado has emphasized that, while a key problem, the proper Bayesian approach is to lay these subjective factors bare, and to focus not on concealing them, but rather on agreeing on shared assumptions. Bayesian calculations do not show &#8220;the truth,&#8221; but rather <em>a mathematical truth based on shared assumptions.</em></p> <p>Certainly Bayesian approaches have problems, but I would encourage considering the situations in which they may prove helpful, rather than focusing on attacking the approaches key problems. Systematizing decision-making may be flawed&#8211;certainly we cannot simply replace the jury with a Bayesian calculator&#8211;but <em>thinking through </em> a complex web of evidence in Bayesian terms provides critical insights, and in some cases fundamental and powerful truths.</p> <p>In short, I would highly recommend that any criminal defense attorney consider investigating both the mapping techniques and the basic statistics of <a class="zem_slink" title="Bayesian network" href="http://en.wikipedia.org/wiki/Bayesian_network" rel="wikipedia">Bayesian networks</a>.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.stat.columbia.edu/~cook/movabletype/archives/2011/06/the_holes_in_my.html">The holes in my philosophy of Bayesian data analysis</a> (stat.columbia.edu)</li> <li class="zemanta-article-ul-li"><a href="http://www.stat.columbia.edu/~cook/movabletype/archives/2011/05/peter_hubers_th.html">Peter Huber&#8217;s reflections on data analysis</a> (stat.columbia.edu)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=a6bf272c-5542-4743-b81f-3bdc0f2fdd1b" alt="" /></div> "Initial reflections on the nature of scientific evidence" https://inpropriapersona.com/articles/initial-reflections-on-the-nature-of-scientific-evidence/ Sat, 09 Jul 2011 14:17:52 +0000 862d5916389a0f9fe3af718119f8b240 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 257px" class="wp-caption alignright"><a href="http://en.wikipedia.org/wiki/File:Uni-Vienna-seal.png"><img title="Seal of the University of Vienna, known in Ger..." src="http://upload.wikimedia.org/wikipedia/en/0/03/Uni-Vienna-seal.png" alt="Seal of the University of Vienna, known in Ger..." width="257" height="250" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>For the last week I&#8217;ve been a part of the <a href="http://www.univie.ac.at/ivc/VISU/">Vienna Institute Summer University</a> (VISU) at the <a class="zem_slink" title="University of Vienna" href="http://maps.google.com/maps?ll=48.2130555556,16.3597222222&amp;spn=0.01,0.01&amp;q=48.2130555556,16.3597222222 (University%20of%20Vienna)&amp;t=h" rel="geolocation">University of Vienna</a>, at a two-week conference on &#8220;The Nature of Scientific Evidence.&#8221; The program brings together graduate students from a variety of disciplines from around the world to discuss science-related topics. Key lecturers this year include <a href="http://www.hps.cam.ac.uk/people/chang/">Hasok Chang</a> (Philosophy of Science/Cambridge), <a href="http://www.ucl.ac.uk/lagnado-lab/david_lagnado.html">David Lagnado</a> (Cognitive Psychology/UCL) and <a href="http://web.archive.org/web/20140504104759/http://history.ucsd.edu/people/faculty/golan-tal.html">Tal Golan</a> (History of Science/UCSD). Interestingly for my interest in law and science, both Lagnado and Golan have focused on the legal sphere as a powerful &#8220;theater&#8221; for investigating the (ab)use of <a class="zem_slink" title="Science" href="http://en.wikipedia.org/wiki/Science" rel="wikipedia">scientific</a> evidence.</p> <p>We can characterize the approaches quickly as follows: Chang discusses the theoretical underpinnings of science, including the <a class="zem_slink" title="Logical reasoning" href="http://en.wikipedia.org/wiki/Logical_reasoning" rel="wikipedia">logical reasoning</a> process; Golan looks at the historical growth of science in the public imagination and the development of scientific experts; and Lagnado investigates the use of <a class="zem_slink" title="Bayesian probability" href="http://en.wikipedia.org/wiki/Bayesian_probability" rel="wikipedia">Bayesian</a> networking to understand a cognitive approach to weighing evidence, both normatively and descriptively.</p> <p>Given that I am an historian of law and technology, and a lawyer, what kinds of takeaways have I gotten so far?</p> <p>First, that Bayesian networking could be highly beneficial to lawyers, especially in criminal defense. The approach has problems, but is a powerful way to avoid common pitfalls in evidential reasoning.</p> <p>Second, that <em>scientific evidence</em> is not radically different from other evidence, and that the fallacies that scientists encounter internally are not radically different than when they present externally (this is more controversial, perhaps).</p> <p>Third, that context is key to evidence, to the acceptance of evidence, and to the use of evidence. One cannot consider <em>all </em>variables, nor all potential outcomes or possibilities, so all decisions made from evidence are bound up in both one&#8217;s own context and from the context the evidence came from. (This doesn&#8217;t mean that all decisions are necessarily totally subjective and arbitrary, however).</p> <p>Fourth, that many disciplines can come together and discuss common questions in a useful and powerful way, but that it isn&#8217;t always easy to speak a mutually intelligible common language (and I&#8217;m not talking about English vs. German).</p> <p>I will have more to say later.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f100b6f6-c43f-4355-9cd8-53aeb6923df0" alt="" /></div> "The tech transfer process: buffering science from commercialism" https://inpropriapersona.com/articles/the-tech-transfer-process-buffering-science-from-commercialism/ Tue, 31 May 2011 17:45:34 +0000 5a7fe278e00b6a358cedb7f338ae36f1 <p><a href="https://inpropriapersona.com/2011/05/the-intersection-of-universities-and-industry-tech-transfer/"></a><a href="http://invent.ucsd.edu/technology/"><img class="alignright" title="Available technology at UCSD" src="http://farm4.static.flickr.com/3283/5782518054_c7e2ccea32_m.jpg" alt="" width="240" height="145" /></a>Technology transfer offices at universities are key players in the process of putting technology to work. They facilitate the sometimes difficult translation of academic discoveries into private, saleable technology. The offices also serve as a buffer between the demands of private enterprise and the <a href="http://en.wikipedia.org/wiki/Robert_K._Merton">Mertonian ideals</a> of the academic &#8220;ivory tower,&#8221; and the technology transfer process reflects this. In fact, much of the economic &#8220;waste&#8221; that occurs during the process is exactly what creates and maintains this buffer.</p> <p>At least at the <a class="zem_slink" title="University of California, San Diego" rel="geolocation" href="http://maps.google.com/maps?ll=32.881,-117.238&amp;spn=0.01,0.01&amp;q=32.881,-117.238 (University%20of%20California%2C%20San%20Diego)&amp;t=h">University of California, San Diego</a>, the process involves tech transfer officers&#8211;6 for the life sciences, 3 for other kinds of technology, and 1 who does both&#8211;reviewing the research done at UCSD. They look for innovations that may be potentially turned into marketable intellectual property. According to Dr. Montisano, a life sciences tech transfer officer at UCSD, they do not &#8220;police faculty.&#8221; As a result, they sometimes do not learn of new technology until after publication, which immediately causes the loss of international patent rights, and puts U.S. patent rights on a 1-year timeline.</p> <p>If they do manage to intercept the technology in time&#8211;either through researchers submitting it to them directly, or by discovering it after publication&#8211;they review the innovation, and may file a <a class="zem_slink" title="Provisional application" rel="wikipedia" href="http://en.wikipedia.org/wiki/Provisional_application">provisional patent application</a> to preserve their rights (this allows publication). They then have a year to convert that to a full patent.</p> <p>Once they have provisional protection in place, the office looks for a good licensee for the technology. They first <a href="http://invent.ucsd.edu/technology/">put a description of the innovation</a> on the UCSD web site, making it available to interested parties who may be seeking such technology. They also identify and actively target potential companies for licensing, focusing on those they know do work in the field and who may be interested in the technology.</p> <p>The point, according to Dr. Montisano, is to get the technology out into the world through commercialization, not to make a fortune, and UCSD looks for licensees on this basis. Such a focus emphasizes the public nature of the university, and emphasizes the role of the tech transfer office as the buffer zone between private and public enterprise&#8211;they license innovations for money, but do so with a goal of benefitting the public.</p> <p>Additionally, the distribution process also protects researchers from undue market influences. The university owns the invention, not the professor, or grad student, or research tech. 50% of the incoming money goes to the university as a whole, while the remaining 50% is split by the department between those who developed the invention and the department. Thus, even the incoming money is diluted and sifted, buffering the researchers themselves from direct contact with the commercial players.</p> <p>More rules are in place when it comes to researchers profiting or being overly involved in the commercial enterprise while retaining their role at the university. A university researcher cannot be the executive of a licensee company nor a board member, but <em>can </em>sit on a scientific advisory board. Such a researcher can own shares in the company, though, suggesting at least one way for the market to more directly intrude on an individual academic. Nonetheless, to be full involved in <em>directing</em> a licensee, a researcher must leave the university and their post as an academic and fully enter the commercial world.</p> <p>Finally, the office itself is insulated from the money involved. Although they bring in millions to the University of California, UCSD&#8217;s technology transfer office is funded entirely by the state. No funding comes through a percentage of license fees and no officer receives specific bonuses for signing deals. This emphasizes their focus on the public service of commercializing technology, rather than on their use as market-enablers.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=0cacfda3-154f-4300-b2a0-f922ea6644ba" alt="" /></div> "“Open transfer” agreements: mediating industry and universities" https://inpropriapersona.com/articles/open-transfer-agreements-mediating-industry-and-universities/ Tue, 31 May 2011 02:57:48 +0000 cf436ad2012f9561bf131cbfa3f77044 <p><a href="http://invent.ucsd.edu/industry/sample-licenses.shtml"><img class="alignright" title="A sample technology transfer agreement" src="http://farm6.static.flickr.com/5226/5778704445_0b94989871_m.jpg" alt="" width="240" height="135" />Madey v. Duke</a> exposed one conflict when industry and universities work in overlapping areas. The 2002 federal court decision highlighted a problem at the <a href="https://inpropriapersona.com/2011/05/the-intersection-of-universities-and-industry-tech-transfer/">intersection of university and industry goals</a>. In that case, <a class="zem_slink" title="Duke University" href="http://maps.google.com/maps?ll=36.0011111111,-78.9388888889&amp;spn=0.01,0.01&amp;q=36.0011111111,-78.9388888889 (Duke%20University)&amp;t=h" rel="geolocation">Duke University</a> claimed its use of patented technology for research purposes was protected by the so-called “experimental use exception” (for more, see <a href="https://inpropriapersona.com/2008/04/open-source-open-access-and-open.html">Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks</a>). The idea was that university research and education was not focused on commercial ends, and should thus be protected by this common-law exception allowing free use of patented inventions for &#8220;experimental&#8221; purposes. The <a class="zem_slink" title="United States Court of Appeals for the Federal Circuit" href="http://www.cafc.uscourts.gov/" rel="homepage">Federal Circuit</a> denied the defense, saying that the &#8220;business&#8221; of the university was education and research, and that was commercial enough to fall outside of the exception.</p> <p>Even after <em>Madey</em>, many researchers continue to ignore patent protections, and continue their work as if they didn&#8217;t need to license technology. The result has been increasing claims by license-holders, and a growing sense by researchers that this is complicating their scientific pursuits and introducing extra costs and restrictions.</p> <p>Universities, now large licensors themselves of new technology thanks to <a class="zem_slink" title="Bayh–Dole Act" href="http://en.wikipedia.org/wiki/Bayh%E2%80%93Dole_Act" rel="wikipedia">Bayh-Dole</a> and <a class="zem_slink" title="Technology transfer" href="http://en.wikipedia.org/wiki/Technology_transfer" rel="wikipedia">technology transfer</a> offices, have turned to, <a href="https://inpropriapersona.com/2011/05/the-intersection-of-universities-and-industry-tech-transfer/">in the language of Professor Robin Feldman</a>, &#8220;open transfer&#8221; agreements to lossen up these restrictions. Such agreements are added to agreements when universities license their technologies for industry to develop, and permit both the licensing university <em>and any other nonprofit they allow </em>to use the technology for education and research. This approach co-opts the mechanisms of the market, rather like <a class="zem_slink" title="Open source" href="http://en.wikipedia.org/wiki/Open_source" rel="wikipedia">open-source</a> licensing does, to permit the continued free sharing and publishing in the academic community.</p> <p>What do these clauses look like? In the case of the <a class="zem_slink" title="University of California, San Diego" href="http://maps.google.com/maps?ll=32.881,-117.238&amp;spn=0.01,0.01&amp;q=32.881,-117.238 (University%20of%20California%2C%20San%20Diego)&amp;t=h" rel="geolocation">University of California, San Diego</a>, Article 2.2 of the <a href="http://invent.ucsd.edu/industry/sample-licenses.shtml">sample agreement for licensing</a> captures this “open transfer” provision:</p> <blockquote><p>2.2 Reservation of Rights. UNIVERSITY reserves the right to:<br /> (a) use the Invention, and Patent Rights for educational and research purposes;<br /> (b) publish or otherwise disseminate any information about the Invention at any time; and<br /> (c) allow other nonprofit institutions to use and publish or otherwise disseminate any information about Invention and Patent Rights for educational and research purposes.</p></blockquote> <p>Part (a) and (b) are relatively standard in all licensing agreements, commercial or not. Most industry licenses also permit the licensor to use their own technology. Part (c) is the interesting part, as it permits <em>other </em>nonprofit institutions to <em>also </em>use and even publish on the technology, provided it is for educational and research purposes. In other words, what the Federal Circuit has taken <em>out </em>of common law, university tech transfer offices have recreated through their own market-focused and <a href="http://en.wikipedia.org/wiki/Neoliberalism">neoliberal</a> license agreements.</p> <p>This approach suggests that, despite efforts to commercialize the &#8220;ivory tower,&#8221; there remain creative resistance that seeks to maintain the traditional values and benefits of an academic research environment.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=14b1287b-5f1a-4ab0-ab7b-17a85a115009" alt="" /></div> "The intersection of universities and industry: tech transfer" https://inpropriapersona.com/articles/the-intersection-of-universities-and-industry-tech-transfer/ Tue, 31 May 2011 01:10:44 +0000 ddf76fd3f8ed831b5f2c76cd61f550c0 <p>Technology transfer offices at universities are responsible for implementing the <a class="zem_slink" title="Bayh–Dole Act" href="http://en.wikipedia.org/wiki/Bayh%E2%80%93Dole_Act" rel="wikipedia">Bayh-Dole Act</a> of 1980 by licensing inventions of university researchers to industry. The goal? According to Dr. Domonic Montisano of the University of California, San Diego&#8217;s <a href="http://invent.ucsd.edu/">technology transfer office</a>, the point is to get university research out to the public through the avenue of commercialization. The point is not to make a fortune, but rather to foster public access to innovations through the transfer of technology to industry. UCSD, Dr. Montisano stressed, never wants technology to sit on the shelf.</p> <p>There are, of course, numerous challenges for tech transfer offices. Within the university, most scientists are &#8220;in it for the science&#8221; and not for the money, according to Dr. Montisano. University researchers have the tendency to publish first, forcing his office to chase after them to try to prevent the loss of patent rights (publishing first loses most international rights immediately, though U.S. law allows for a year&#8217;s grace). Outside the university, industry values focus on profit first&#8211;even if many researchers have been taught to value the science by universities first.</p> <figure id="attachment_3768" style="max-width: 300px" class="wp-caption aligncenter"><a href="https://inpropriapersona.com/wp-content/uploads/2011/05/University-v-Industry.png"><img class="size-medium wp-image-3768 " title="University-v-Industry" src="http://res.cloudinary.com/krisnelson/image/upload/h_180,w_300/v1514416979/University-v-Industry_ww09cg.png" alt="" width="300" height="179" /></a><figcaption class="wp-caption-text">Diagram from James A. Severson, Ph.D., of Veratect Corporation, Kirkland, WA</figcaption></figure> <p>Industry prefers to restrict use of its technologies to those explicitly licensed—and such licensees generally must pay for the privilege of their use. Methods and materials are kept close, as trade secrets, unless licensed out for approved use. Competitors must be kept from access to preserve corporate profits. Universities, on the other hand, have generally taken a much broader approach to technology use and sharing. Researchers in universities must “publish or perish,” and getting describing methods and approaches garners a researcher the most benefit when readership is broad. One-upping academic competitors is still a key goal, but the method is through demonstration and publishing successes, not through profit-making and market dominance.</p> <p>The Bayh-Dole Act attempted to bridge the divide, and technology transfer offices are the means of its implementation. Prior to Bayh-Dole, &#8220;legislators were concerned that for a variety of reasons, the government&#8221;&#8211;formerly the federal government owned the research it funded&#8211;&#8220;had proved ineffective as a shepherd of the inventions created with federal research dollars&#8221; (see <a href="https://inpropriapersona.com/2008/04/open-source-open-access-and-open.html">Open Source, Open Access, and Open Transfer</a>: Market Approaches to Research Bottlenecks). By many measures, the results have been phenomenal: <a href="http://invent.ucsd.edu/info/documents/TTOAR_FY09web.pdf">at the end of fiscal year 2009</a>, UCSD alone had more than 400 licenses active around the world, with a steady increase since 2000. Also in 2009, UCSD&#8217;s technology transfer office distributed more than fifteen million dollars to inventors ($9 million), joint titleholders ($432 thousand) research labs and departments ($2.5 million), and the UC general fund ($2.5 million).</p> <p>All the money suggests some obvious problems created by the &#8220;intrusion&#8221; of a neoliberal, market-focused approach into the &#8220;ivory tower&#8221; university environment (assuming such pure extremes ever existed). For a cash-strapped state government like California&#8217;s, why not emphasize this market-connected activity and turn universities into self-supporting institutions? Such an approach risks compromising the university focus of basic research and&#8211;perhaps even more importantly&#8211;ignores the less commodifiable teaching and research done at such institutions, especially in the humanities. Even within the sciences, forcing research to fit into license agreements and patent arrangements may impede the flow of data, slow down innovation by restricting information sharing, and, ultimately, force university researchers away from basic sciences that form the core of future applications.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://kfwhite.wordpress.com/2011/04/06/technology-transfer-and-the-third-way/">Technology Transfer and the Third Way</a> (kfwhite.wordpress.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.xconomy.com/new-york/2011/04/04/columbia-universitys-tech-transfer-guru-orin-herskowitz-on-turning-tech-biotech-and-clean-tech-ideas-into-businesses/">Columbia University&#8217;s Tech Transfer Guru, Orin Herskowitz, on Turning IT, Biotech, and Cleantech Ideas Into Businesses</a> (xconomy.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b7c86844-f6c7-43ae-9a5a-8c0ee7177a71" alt="" /></div> "Presenting “Privacy & The Telegraph”" https://inpropriapersona.com/articles/presenting-privacy-the-telegraph/ Sat, 21 May 2011 04:20:50 +0000 4f5742b40e65f1fafe8de4ca1f54c2e7 <p>A slideshow presentation of my talk on the shifting views on privacy, from the nineteenth century&#8217;s focus on <em>property</em> and <em>relationships</em> to the twentieth&#8217;s focus on <em>people</em> as having an <em>individual</em> right to privacy.</p> <div><object style="width:420px;height:323px" ><param name="movie" value="http://static.issuu.com/webembed/viewers/style1/v1/IssuuViewer.swf?mode=embed&amp;viewMode=presentation&amp;layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&amp;showFlipBtn=true&amp;documentId=110521063303-001a4f0fe90842cab84bd5e5a455cd3e&amp;docName=telegraph-privacy&amp;username=krisnelson&amp;loadingInfoText=Privacy%20%26%20the%20Telegraph&amp;et=1305959772105&amp;er=57" /><param name="allowfullscreen" value="true"/><param name="menu" value="false"/><embed src="http://static.issuu.com/webembed/viewers/style1/v1/IssuuViewer.swf" type="application/x-shockwave-flash" allowfullscreen="true" menu="false" style="width:420px;height:323px" flashvars="mode=embed&amp;viewMode=presentation&amp;layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&amp;showFlipBtn=true&amp;documentId=110521063303-001a4f0fe90842cab84bd5e5a455cd3e&amp;docName=telegraph-privacy&amp;username=krisnelson&amp;loadingInfoText=Privacy%20%26%20the%20Telegraph&amp;et=1305959772105&amp;er=57" /></object></p> <div style="width:420px;text-align:left;"><a href="http://issuu.com/krisnelson/docs/telegraph-privacy?mode=embed&amp;viewMode=presentation&amp;layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&amp;showFlipBtn=true" target="_blank">Open publication</a> &#8211; Free <a href="http://issuu.com" target="_blank">publishing</a> &#8211; <a href="http://issuu.com/search?q=constitution" target="_blank">More constitution</a></div> </div> <p>&nbsp;</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/an-argument-for-the-inviolability-of-telegraphic-correspondence/">An argument for the &#8220;Inviolability of Telegraphic Correspondence&#8221;</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/the-slow-pace-of-fourth-amendment-change/">The slow pace of Fourth Amendment change</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">The Fourth Amendment: from property to people</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=efc6711a-4257-455c-b8f4-2f2bb8e669f0" alt="" /></div> "Cloud concerns and data safety in the legal profession" https://inpropriapersona.com/articles/cloud-concerns-and-data-safety-in-the-legal-profession/ Sat, 14 May 2011 01:41:46 +0000 9977a4bedd0622c0519d4c09224e8580 <p><a href="http://www.flickr.com/photos/37053322@N00/2291896028"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="&quot;Security&quot; by Flickr user Anonymous Account, used under a Creative Commons license" src="http://farm3.static.flickr.com/2340/2291896028_e54336ab04_m.jpg" alt="" width="160" height="240" border="0" hspace="5" /></a></p> <p><span style="color: #ff0000;">Note: this post is from 2011. While much of the information remains true today, when it comes to these matters, remember that law and technology are both always changing. I recommend <a href="https://ssd.eff.org/en">Surveillance Self-Defense</a> from the Electronic Frontier Foundation as a beginning.</span></p> <p>More than many other professions, lawyers deal with confidential data. This data is often entrusted to them by others under the guise of <a class="zem_slink" title="Attorney-client privilege" href="http://en.wikipedia.org/wiki/Attorney-client_privilege" rel="wikipedia">attorney-client privilege</a>, and clients rely and expect it to remain secure.</p> <p>In the old days, safes and locks kept client data secure. More recently, attorneys stored their data&nbsp;on local PCs and backed up to disk or tape, which is then stored under lock and key (preferably offsite).</p> <p>Stealing data required physical access, Accessing data, though, could conceivably occur via legal means, including via subpoena and search warrant. The real protection from this was the existence of evidentiary&nbsp;<em>privilege</em>, which excluded legally protected materials regardless of how they were acquired.</p> <p>Now on to <a class="zem_slink" title="Dropbox" href="http://www.dropbox.com" rel="homepage">Dropbox</a>, Google, and so on. According to <em><a class="zem_slink" title="PC Magazine" href="http://www.pcmag.com" rel="homepage">PC Magazine</a>,</em></p> <blockquote><p>The updated terms specify that Dropbox will turn over data: to comply with the law; protect someone&#8217;s safety; prevent fraud or abuse on Dropbox; or protect Dropbox&#8217;s property rights. If Dropbox agrees to hand over data, the company will decrypt it before doing so. If you have encrypted it before storing it on Dropbox, though, it will remain encrypted.</p> <p>&#8230;</p> <p>Dropbox said it receives about one government request per month for its 25 million users. It also stressed that it doesn&#8217;t just hand over information when asked.</p> <p>&#8220;Our legal team vets all of these requests before we take any action. The small number of requests we have received have all been targeted to specific individuals under criminal investigation,&#8221; Dropbox said in a blog post. &#8220;If we were to receive a government request that was too broad or didn&#8217;t comply with the law, we would stand up for our users and fight for their privacy rights.&#8221;</p> <p>via <a href="http://www.pcmag.com/article2/0,2817,2383926,00.asp">Dropbox Defends Privacy, Law Enforcement Policies | News &amp; Opinion | PCMag.com</a>.</p></blockquote> <p>So what does this mean for lawyers storing client data? Well, if it&#8217;s protected under attorney-client privilege, it means that&#8211;as long as you trust Dropbox not to make a mistake&#8211;then such legal access is no more of a problem than with traditional files (and plenty of screw-ups occurred with traditional paper!). Trusting Dropbox is likely not much different from trusting any third party to store your data, paper or otherwise&#8211;and that&#8217;s pretty standard.</p> <p>If, on the other hand, you are more concerned with non-privileged materials (trade secrets, perhaps, or other material that might be excluded at trial but still cause harm), then you likely should not trust your data to Dropbox or any other <a class="zem_slink" title="Cloud Computing" href="http://www.wikinvest.com/concept/Cloud_Computing" rel="wikinvest">cloud-based</a> or third-party solution of any kind. If you don&#8217;t want to go quite that far, try a system that fully encrypts your data <em>first</em>, before it goes across the wire and before it hits the remote server.</p> <p><a class="zem_slink" title="TrueCrypt" href="http://www.truecrypt.org/" rel="homepage">TrueCrypt</a> then Dropbox meets these criteria, or a Dropbox-like service such as <a class="zem_slink" title="SpiderOak" href="https://spideroak.com" rel="homepage">SpiderOak</a>.&nbsp;<span style="color: #ff0000;">Note: As of 2016, I recommend you consider other options than TrueCrype, like <a href="https://veracrypt.codeplex.com/">VeraCrypt</a>, as TrueCrypt has been discontinued.</span></p> <p>So the fact that Dropbox allows legal access to your data is not the end of the world for use of the cloud, even for lawyers. But for truly secure offsite storage, likely more secure than even old-fashioned paper storage, consider solutions that provide end-to-end encryption.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/" rel="nofollow">TrueCrypt is discontinued, try these free alternatives</a> (comparitech.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.wired.com/threatlevel/2011/05/dropbox-ftc/" rel="nofollow">Dropbox Lied to Users about Data Security, Complaint to FTC Alleges</a> (wired.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.pcworld.com/article/226080/why_dropbox_security_policy_is_ok_for_cloud_storage.html" rel="nofollow">Why Dropbox&#8217;s Privacy Policy Is OK (Just Proceed Carefully)</a> (pcworld.com)</li> </ul> "How I use a blog in my research and writing" https://inpropriapersona.com/articles/how-i-use-a-blog-in-my-research-and-writing/ Sun, 01 May 2011 01:26:33 +0000 78649f20de87c28784059c8537037bd7 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/7162765@N06/2343135152"><img title="Why I Blog Card Catalog" src="http://farm4.static.flickr.com/3162/2343135152_1ca34edc02_m.jpg" alt="Why I Blog Card Catalog" width="240" height="147" /></a><figcaption class="wp-caption-text">Image by Jeffrey Keefer via Flickr</figcaption></figure> </div> <p>There are many (non-exclusive) reasons to blog: money, fame, narcissism, <a class="zem_slink" title="Search engine optimization" rel="wikipedia" href="http://en.wikipedia.org/wiki/Search_engine_optimization">SEO</a>, product placement and advertising, journaling, self-discovery, passion&#8230; The specific reasons for blogging are as varied as bloggers themselves, and arguments about <a href="http://www.problogger.net/archives/2011/05/01/should-you-even-be-blogging/">whether one should be blogging at all</a> are equally diverse, especially since so many bloggers give up in frustration because their audience is so small. But a small audience is only a problem for certain kinds of blogging, of course, most especially blogging for dollars (or euros, shekels, or pounds).</p> <p>As someone who does not blog to earn money (I like to pay my hosting fees, but that&#8217;s only because I&#8217;m a poor grad student), I thought I&#8217;d run through <em>how </em>and <em>why </em>I blog, and why I find it a critical part of my &#8220;real&#8221; work of academic research and writing. (If you are looking for how to make money blogging, there are <a href="http://www.problogger.net/">better</a> <a href="http://www.copyblogger.com/">sources</a> out there.)</p> <p><strong>Why I Blog</strong></p> <p>I blog primarily for three reasons, in increasing order of importance: (1) to give me a visible presence on the Internet for my (potential) colleagues and students to see my work;  (2) to get feedback, not all of it visible on my blog; (3) to capture interesting and potentially fruitful Internet finds (i.e., as part of my research&#8211;which is mostly online anyway these days); and (4) as a rough-draft medium that I can draw on when eventually need to actually produce a piece of writing.</p> <p>(Oh yes, and because I enjoy it.)</p> <p>Like many personal bloggers, I sometimes use my blog to capture interesting finds. More often, I try to integrate this with my primary purpose, and turn my research immediately into writing by creating short articles about my finds. That way I have ready-made rough-draft material to work from when I go to write. For those who may primarily focus on this purpose, a so-called &#8220;tumblelog&#8221; like <a class="zem_slink" title="Tumblr" rel="homepage" href="http://tumblr.com">Tumblr</a> or <a class="zem_slink" title="Posterous" rel="homepage" href="http://www.posterous.com">Posterous</a> (both of which I use from time to time) may be the ideal blogging service.</p> <p><img class="alignleft" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="Screen capture of my research page" src="http://farm6.static.flickr.com/5104/5673745037_d0c03fdd0c_m.jpg" border="0" alt="My research page" hspace="5" width="240" height="120" /></p> <p>Making myself visible on the Internet may be a form of vanity, but it&#8217;s increasingly important to &#8220;brand&#8221; oneself today. I want colleagues, students, employers, etc. to be able to find me and get insight into my professional persona easily, and I want them to see what I produce. It also helps connect me to various larger communities, including academics, other bloggers, lawyers, and so on. It&#8217;s a networking tool that doesn&#8217;t need to be awkward or self-aggrandizing.</p> <p>Feedback is useful, though comments may or may not be. Sometimes this comes in the form of blog comments, sometime in terms of email, and more often it gives me a medium in which to share my drafts with &#8220;real-life&#8221; colleagues. The more readers you have, of course, the more feedback you might potentially get&#8211;but that isn&#8217;t <em>my </em>primary purpose, so I don&#8217;t care so much about raw numbers of visitors.</p> <p><strong>How I Blog</strong></p> <p>My most important reason for blogging (use as a rough-draft medium) has developed into the primary driver of my methodology. So, while I do sometimes simply capture the barest details about new publications or interesting articles, more often I use other tools for that purpose: <a href="http://reader.google.com">Google Reader</a> or <a href="http://tbuzz.arc90.com/">TBUZZ</a> to <a href="http://twitter.com">Twitter</a> to <a href="http://delicious.com">Delicious via </a><a href="http://packrati.us/">Packrati.us</a> and <a href="http://pinboard.in/">Pinboard</a><a>, or </a><a href="http://readitlaterlist.com/">Read It Later</a> or <a href="http://www.instapaper.com">Instapaper</a>.</p> <p>I&#8217;ve realized, though, that simply capturing lots of small amounts of information in the blog medium is less useful <em>for me</em> than writing fewer, longer write-ups. Spending more time on each potential source, writing up a more detailed and in-depth analysis or reflection provides me with effective, highly useful material when I need to write an article later.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/41596622@N00/5673711767"><img class=" " title="My blog entry on the Fourth Amendment" src="http://farm6.static.flickr.com/5143/5673711767_575c43700a_m.jpg" alt="My blog entry on the Fourth Amendment" width="240" height="120" /></a><figcaption class="wp-caption-text">Image by krisnelson via Flickr</figcaption></figure> </div> <p>This kind of writing is in-between the quick summaries or reactions of <a href="http://twitter.com">Twitter</a> or a tumblelog, but less detailed, analytic, or proof-read than a true article. These are more like the &#8220;reflection&#8221; assignments I give my undergraduates, and are intended not so much for consumption by others as they are to capture analytic ideas and details that may help me later. The focus is not on perfection, which makes writing them easier, but I do try to have an audience beyond myself in mind, which vastly increases their reusability.</p> <p>What does this look like? Try posts like the following&#8211;none are perfect, but they&#8217;ve all proved useful later:</p> <ul> <li><a title="Judge Noble Hand hints at the move from property to people" rel="bookmark" href="https://inpropriapersona.com/2011/04/judge-noble-hand-hints-at-the-move-from-property-to-people/">Judge Noble Hand hints at the move from property to people</a></li> <li><a title="An argument for the &quot;Inviolability of Telegraphic Correspondence&quot;" rel="bookmark" href="https://inpropriapersona.com/2011/04/an-argument-for-the-inviolability-of-telegraphic-correspondence/">An argument for the &#8220;Inviolability of Telegraphic Correspondence&#8221;</a></li> <li><a title="Smallpox inoculation and quarantine in colonial America" rel="bookmark" href="https://inpropriapersona.com/2010/03/smallpox-inoculation-and-quarantine-in-colonial-america/">Smallpox inoculation and quarantine in colonial America</a></li> </ul> <p>Obviously, this approach is not right for everyone, but for anyone who needs to produce written work (that doesn&#8217;t need to be secret!), it&#8217;s wonderful, practical, and (relatively) easy.</p> <p><strong>Conclusion</strong></p> <p>So there you go. I blog mostly so I don&#8217;t have to stare at a blank page later, and to a lesser extent so that I can be found online. (Also I like tech.) If you do decide to blog, I highly recommend you think about the <em>why </em>and the <em>how</em> for yourself.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2007/09/10-reasons-for-law-student-to-blog.html">10 Reasons for a Law Student to Blog</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://worldmomsblog.com/2011/04/29/friday-question-why-do-you-blog/">Friday Question: Why do you blog?</a> (worldmomsblog.com)</li> <li class="zemanta-article-ul-li"><a href="http://kevin.lexblog.com/2011/04/articles/cool-stuff/writing-for-blogs-style-strategy-voice-webinar-recording-now-available/">Writing For Blogs &#8211; Style, Strategy, Voice: Webinar recording now available</a> (kevin.lexblog.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d7f31e84-ad28-4800-a352-b1bc67f598be" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Judge Noble Hand hints at the move from property to people" https://inpropriapersona.com/articles/judge-noble-hand-hints-at-the-move-from-property-to-people/ Sun, 24 Apr 2011 01:32:05 +0000 b25bd15abbb98f19ea4b71d3e3df0177 <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"><a href="http://www.flickr.com/photos/41596622@N00/5648173284"><img class="zemanta-img-configured alignright" title="American Law Review 1897" src="http://farm6.static.flickr.com/5187/5648173284_0d0f15203f_m.jpg" alt="American Law Review 1897" width="240" height="135" /></a></div> <p>I have <a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">already discussed</a> how Fourth Amendment protections and related &#8220;right to privacy&#8221; have shifted from a focus on property in the 19th century to one focused on people in the 20th. <a href="http://en.wikipedia.org/wiki/Augustus_Noble_Hand">Judge Noble Hand</a>&#8216;s 1897 law review article, <a href="http://www.jstor.org/stable/3305951">Schuyler against Curtis and the Right to Privacy</a>, gives some interesting hints about how American jurists contributed to this shift. He begins with a discussion of property and privacy:</p> <blockquote><p>A great argument of those who deny the existence of a right to privacy is always based on expressions found in some of the cases that an injunction will only issue to protect property. But such expressions are misleading. The confusion arises, it is believed, from a misconception as to what is the real legal nature of property.</p></blockquote> <p><em>Matter of Beekman Street</em>, Hand points out, explained it like this: &#8220;The dividing line between property as a thing objectively appropriated by a person, and a personal right as subjectively belonging to a person, is not always entirely distinct.&#8221;</p> <p>Hand goes on to emphasize that property is a &#8220;bundle of rights,&#8221; not a thing in particular:</p> <blockquote><p>In other words, the only scientific conception of property is not that of a horse, or a piece of land, or any object; but it is that of a bundle of legal rights&#8211;&#8221; indefinite in point of use, unrestricted in point of disposition, over a determinate thing,&#8221; as Austin puts it.</p></blockquote> <p>He goes on to discuss letters and that the right to prevent publication of a letter is <em>not</em> based on ownership of the physical thing, and yet the courts still protect it:</p> <blockquote><p>That equity will protect the single right to prevent publication in the case of letters shows conclusively that the courts recognize the absurdity of refusing to protect one right, because the person asking for relief has not others accompanying it, or because that right is not related to the ownership of a tangible object.</p></blockquote> <p>Another example Hand points to, where <a class="zem_slink" title="Court of equity" href="http://en.wikipedia.org/wiki/Court_of_equity" rel="wikipedia">courts of equity</a> have issued injunctions, are bodies of deceased relatives: &#8220;These cases certainly go to show that an invasion of a property right is not the test of equitable interference, for there is at common law no property in a dead body.&#8221;</p> <p>Thus, Hand says, to argue (as some did, including Hadley) that there can be no invasion of privacy when no property is involved is &#8220;technical and conservative,&#8221; and does not match up with precedents such as rights in letters and the prevention of mutilation of the body of a dead relative. In other words, although Hand acknowledges that earlier common law emphasized that courts of equity (which grant injunctions) operated around property rights, this was no longer the case.</p> <p>For additional support of the concept that legal rights go beyond property, he quotes Justice Patterson of the New York Supreme Court in <em>Foley v. Phelps</em>:</p> <blockquote><p>It is not a mere idle utterance, but a substantial legal principle, that wherever a real right is violated a real remedy is afforded by the law. A right to vote can in no sense be called a pure right of property; it is merely a personal right; yet who would now contend that a person obstructing a voter&#8217;s right or preventing his voting would not be, irrespective of any statutory enactment, liable, even if the candidate of the choice of the person thus obstructed was elected.</p></blockquote> <p>Additionally, Hand confronts criticisms that invasions of privacy cause &#8220;mental suffering,&#8221; which should not be recoverable as it does not involve any conception of &#8220;property.&#8221; He rebuts this by citing Justice Mitchell, in <em>Larson v. Chase</em>, who points to actions for false imprisonment, where the plaintiff was not touched, and yet could still recover, or recoveries for assault with no physical contact, where the plaintiff also recovered. Mitchell wrote&#8211;and Hand agreed&#8211;that &#8220;where the wrongful act constitutes an infringement on a legal right mental suffering may be recovered for if it is the direct, proximate and natural result of the wrongful act.&#8221;</p> <p>Hand goes on to quote from <a href="http://en.wikipedia.org/wiki/Samuel_D._Warren"><span class="zem_slink">Samuel D. Warren</span></a> and <a class="zem_slink" title="Louis Brandeis" href="http://en.wikipedia.org/wiki/Louis_Brandeis" rel="wikipedia">Louis Brandeis</a>&#8216; <a href="http://www.jstor.org/stable/1321160">earlier law review article on the right to privacy</a> and summarizes their pro-privacy approach. He approves their arguments, and asks &#8220;If, then, the protection of the privacy of the individual is practically so desirable, why should the law hesitate to give that protection?&#8221;</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/confidentiality-vs-privacy/">Confidentiality vs. privacy</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/03/what-was-the-right-to-privacy-in-1948/">What was the &#8220;right to privacy&#8221; in 1948?</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d5cce7bd-a1a5-4a21-bd61-69d5ba36bda0" alt="" /></div> "Confidentiality vs. privacy" https://inpropriapersona.com/articles/confidentiality-vs-privacy/ Sat, 23 Apr 2011 01:50:41 +0000 3b005b3f5d949ff0b4c9093f0d1836b9 <p><a href="http://www.flickr.com/photos/usnationalarchives/3679495252/"><img class="alignright" title="The U.S. Bill of Rights from The U.S. National Archives" src="http://farm3.static.flickr.com/2587/3679495252_2359507961_m.jpg" alt="" width="226" height="240" /></a>In the law, there is a difference between <em>confidentiality</em> and <em>privacy</em>, and it&#8217;s a difference that&#8217;s important for both legal history (highlighted by the 20th century focus on the right to privacy in American law, as opposed to a 19th century focus on confidentiality) and contemporary law.</p> <p><a class="zem_slink" title="University of California, Irvine" href="http://maps.google.com/maps?ll=33.64535,-117.842641667&amp;spn=1.0,1.0&amp;q=33.64535,-117.842641667 (University%20of%20California%2C%20Irvine)&amp;t=h" rel="geolocation">UC Irvine</a>&#8216;s Office of Research Administration quickly <a href="http://research.uci.edu/ora/hrpp/privacyAndConfidentiality.htm">summarizes</a> the difference as follows: &#8220;Privacy is about people. Confidentiality is about data.&#8221; Now, what does that mean?</p> <p><strong>What is &#8220;confidentiality&#8221;?</strong><br /> Modern medical research is deeply concerned with both confidentiality and privacy, and federal regulations <a title="PDF from the University of Texas Health Science Center at San Antonio" href="http://web.archive.org/web/20140514023533/http://research.uthscsa.edu:80/ocr/Privacy%20and%20Confidentiality%20in%20Human%20Research.pdf">maintain the distinction</a> between the two. Because of this contemporary concern, the Office of Research Administration at UC Irvine provides a <a href="http://research.uci.edu/ora/hrpp/privacyAndConfidentiality.htm">good explanation of confidentiality vs. privacy</a> in the medical context. According to the UCI ORA, confidentiality is focused on <em>information</em> and <em>trust </em>about someone, and deals with the &#8220;treatment of information that an individual has disclosed in a relationship of trust.&#8221;</p> <p>The historical meaning is the same, according to <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495">Privacy&#8217;s Other Path: Recovering the Law of Confidentiality</a>: &#8220;Confidentiality focuses on relationships; it involves trusting others to refrain from revealing personal information to unauthorized individuals.&#8221; Out of this has grown legal protections for maintaining and validating these important relationships. Such protections include the law of evidentiary privilege (<a class="zem_slink" title="Attorney-client privilege" href="http://en.wikipedia.org/wiki/Attorney-client_privilege" rel="wikipedia">attorney-client privilege</a>, spousal privilege, etc.), fiduciary duty, <a href="http://lawschool.ekris.org/2008/04/trade-secrets-remedies.html">trade secrets</a>, and even the enforcement of contracts and non-compete agreements.</p> <p>The law of confidentiality, although well grounded in common law and in statutory law, has found only limited support in the <a class="zem_slink" title="United States Constitution" href="http://en.wikipedia.org/wiki/United_States_Constitution" rel="wikipedia">U.S. Constitution</a>, specifically in the right against self-incrimination and the right to due process (both in the Fifth Amendment, then applied to the states via the Fourteenth Amendment) do connect, I think, with the law of confidentiality.</p> <p><strong>What is “privacy”?</strong></p> <blockquote><p>&#8220;The right to be left alone&#8211;the most comprehensive of rights, and the right most valued by a free people.&#8221;<br /> &#8212; Supreme Court <a class="zem_slink" title="Louis Brandeis" href="http://en.wikipedia.org/wiki/Louis_Brandeis" rel="wikipedia">Justice Louis Brandeis</a>, <a class="zem_slink" title="Olmstead v. United States" href="http://en.wikipedia.org/wiki/Olmstead_v._United_States" rel="wikipedia">Olmstead v. U.S.</a>, 277 U.S. 438 (1928)</p></blockquote> <p>Privacy, <a href="http://research.uci.edu/ora/hrpp/privacyAndConfidentiality.htm">turning again to UCI</a> and the contemporary context, is about <em>people</em>, and is about the &#8220;control over the extent, timing, and circumstances of sharing oneself (physically, behaviorally, or intellectually) with others.&#8221;</p> <p>Historically, one can look to Samuel Warren and Louis Brandeis&#8217; groundbreaking law review article on the <a href="http://en.wikipedia.org/wiki/Privacy_law">right to privacy</a>, where, in the words of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495">Neil Richards and Daniel Solove</a>, &#8220;the goal of privacy protections [was not seen as] enforcing the norms and moralities of relationships but as protecting an &#8216;inviolate personality&#8217; and the feelings of the individual from injury.&#8221;</p> <p>The right to privacy argued for by Warren and Brandeis&#8217; 1890 law review article has grown into the Constitution since they originally articulated it, according to the <a href="http://topics.law.cornell.edu/wex/Privacy">Legal Information Institute at Cornell</a>:</p> <blockquote><p>The right has developed into a liberty of personal autonomy protected by the 14th amendment. The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined.</p></blockquote> <p>Additionally, statutory protections also exist at both the state and federal level:</p> <blockquote><p>The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information. The Federal Trade Commission overwhelmingly enforces this statutory right of privacy, and the rise of privacy policies and privacy statements are evidence of its work.</p></blockquote> <p>Unlike the law of confidentiality, the right to privacy has developed deep support in Constitutional interpretation. The Fourth Amendment, prohibiting unreasonable searches and seizures, is the most obvious support, but additional privacy protections are found in the &#8220;<a href="http://en.wikipedia.org/wiki/Griswold_v._Connecticut">penumbra</a>&#8221; of the Constitution, including the First, Fifth, and Fourteenth Amendments.</p> <p>I will explore some of the historical impact of this difference in future articles.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">Law of privacy vs. confidentiality in the nineteenth century</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/03/what-was-the-right-to-privacy-in-1948/">What was the &#8220;right to privacy&#8221; in 1948?</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=8d251b08-588d-4263-8f95-460d8d5d1177" alt="" /></div> "Were telegrams privileged communications?" https://inpropriapersona.com/articles/were-telegrams-privileged-communications/ Mon, 18 Apr 2011 00:36:41 +0000 1a82f30cf03cbe8ac88aac4c94f09009 <p><a href="http://www.flickr.com/photos/krisnelson/5629061603"><img class="alignright" title="A Treatise on Telegraph Law" src="http://farm6.static.flickr.com/5105/5629061603_880f556904_m.jpg" alt="" width="151" height="240" /></a>Under the common law, a &#8220;privilege&#8221; shields communications between certain people from being introduced as evidence in court. Some examples include <a class="zem_slink" title="Spousal privilege" rel="wikipedia" href="http://en.wikipedia.org/wiki/Spousal_privilege">spousal privilege</a>, <a class="zem_slink" title="Attorney-client privilege" rel="wikipedia" href="http://en.wikipedia.org/wiki/Attorney-client_privilege">attorney-client privilege</a>, and priest-penitent privilege. These privileges are generally created to serve a greater public good, and exist because, on balance, the courts (or legislatures) feel that protecting the confidentiality of certain communications overall is better than requiring their revelation in specific instances.</p> <p>With the introduction of the telegraph in the 1800s, some jurists, recognizing the growing importance of telegraphic communication, advocated for a kind of &#8220;telegraph operator-customer&#8221; privilege. Doing so would foster this new communication medium, since using it required divulging potentially confidential information to the telegraph operators. This approach failed, and a new one, relying on the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a>, failed to take hold before telegrams lost their special place in American life.</p> <p><strong>Michigan, 1860</strong></p> <p>As early as 1860, a justice of the peace in Michigan jailed a telegraph operator who refused to turn over telegrams relevant to a murder investigation, arguing that such communications were privileged.</p> <p>The attorney for the operator argued before the <a class="zem_slink" title="Michigan Supreme Court" rel="geolocation" href="http://maps.google.com/maps?ll=42.733664,-84.565431&amp;spn=0.01,0.01&amp;q=42.733664,-84.565431 (Michigan%20Supreme%20Court)&amp;t=h">Michigan Supreme Court</a> in <em>In Re Farnham,</em> 8 Mich. 89:</p> <blockquote><p>That communications intrusted to an operator for transmission by telegraph, as well as those received by him for delivery, are confidential, and he is not at liberty to disclose them: Comp. L., §§ 2064, 5912. The justice has no right to require the disclosure of communications which the law says he shall not disclose. Compare the provisions with respect to ministers and physicians: Comp. L., §§ 4322, 4323; <em>Johnson v. Johnson</em>, 4 Paige, 460.</p> <p>The reason why the statute prohibits the telegraph operator from disclosing the communications, is the same as in the case of attorneys, ministers and physicians&#8211;that of public policy; the idea that on the whole more good will result to the people generally by the prohibition and immunity than without it. And no good reason for the rule can be urged in the case of attorneys, physicians and ministers, that does not apply with equal if not greater force to the case of telegraph operators.</p></blockquote> <p>In the end, though, the Michigan Supreme Court decided the question would be &#8220;improper for the court to pass upon,&#8221;since they decided the &#8220;examining magistrate&#8221; could not commit someone for refusing to testify anyway, thus neatly sidestepping the privilege question</p> <p><strong>Maine, 1870</strong></p> <p>Another state supreme court, this one in Maine, was faced with a similar argument about the potential for granting privilege to telegraphic communications in 1870 (<em>State of Maine v. Alden Litchfield</em>, 58 Me. 267). The defendant argued for privilege, but the court disagreed, saying that:</p> <blockquote><p>a verbal message &#8230; would be admissible. The mode of transmission to the person delivering the message, whether by telegraph or otherwise, has nothing to do with the matter. &#8230; Nor can telegraphic communications be deemed any more confidential than any more confidential than any other communications. &#8230;</p></blockquote> <p>The court goes on to say, &#8220;The honest man asks for no confidential communications, for the withholding of same cannot benefit him. The criminal has no right to demand exclusion of evidence because it would establish his guilt.&#8221; In short, the &#8220;telegraphic operator, as such, can claim no exemption from interrogation.&#8221;</p> <p><strong>West Virginia, 1874</strong></p> <p>Similar in its holding if not its logic, the <a class="zem_slink" title="Supreme Court of Appeals of West Virginia" rel="geolocation" href="http://maps.google.com/maps?ll=38.336401,-81.612062&amp;spn=0.01,0.01&amp;q=38.336401,-81.612062 (Supreme%20Court%20of%20Appeals%20of%20West%20Virginia)&amp;t=h">West Virginia Supreme Court</a>, in <em>National Bank v. National Bank, </em>7 W. Va. 544 (1874), decided not &#8220;to approve the doctrine that &#8230; telegraphic communications are privileged from disclosure,&#8221; noting that while &#8220;[l]etters passing through the mail are protected by an act of Congress from being seized and opened for the purpose of furnishing testimony,&#8221; the same was not true of telegrams. Adopting the new &#8220;privilege&#8221; would &#8220;limit the field of inquiry after truth,&#8221; and doing so should be left to the legislature, not the courts, since it was &#8220;unknown to the common law.&#8221;</p> <p><strong>Federal Court, Missouri, 1876</strong></p> <p>In <em>United States v. Babcock</em>, 24 F. Cas. 908 (1876), a federal court held that, despite Western Union&#8217;s attempt to quash, the broadly written subpoena ordering them to produce telegrams was valid and binding, since it &#8220;describes, with sufficient particularity, indeed, with all the particularity that seemed to be practicable, under the circumstances, the very messages that are wanted.&#8221; The court made no reference to the Fourth Amendment, only to the common law of subpoenas.</p> <p>No argument was made concerning privilege <em>per se</em>, and thus the court did &#8220;not consider whether there is any ground to suppose that, in law, the telegraph company occupies a different relation than would be occupied by private persons having custody of the same papers.&#8221;</p> <p><strong>Missouri, 1880</strong></p> <p>Citing <em>State v. Litchfield </em>in 1880<em>, </em>the <a class="zem_slink" title="Supreme Court of Missouri" rel="wikipedia" href="http://en.wikipedia.org/wiki/Supreme_Court_of_Missouri">Missouri Supreme Court</a> in <em>Ex parte Brown</em> held that &#8220;[t]elegraphic messages are not privileged communications.&#8221; Echoing <em>Litchfield, </em>the court added, &#8220;There is no statute of this State or principle of law which places a telegram on a different ground from that which any other communication occupies, made by one through another, to a third party.&#8221;  The court decided that the &#8220;only ground &#8230; upon which the exemption of telegrams from this process of the court can be placed, is that they are privileged communications, and we cannot declare them to be such in the absence of a statute so providing.&#8221;</p> <p>Additionally, the court acknowledged that telegraph companies are &#8220;subjected to a penalty for disclosing the contents of any private dispatch,&#8221; but noted that this restriction did not apply &#8220;in a judicial proceeding.&#8221;</p> <p>However, unlike others of its contemporary courts, the Missouri Supreme Court went beyond a discussion of privilege, and examined the possibility that the Fourth Amendment (or, rather, the state equivalent) might indeed protect telegraphic communications, at least inasmuch as to require that the messaged to be produced must be &#8220;described with sufficient accuracy.&#8221; Before proceeding with this analysis, the Missouri Supreme Court rejected the lower court ruling that the analysis under the state equivalent of the Fourth Amendment &#8220;has but little bearing on the present question.&#8221;</p> <p>Instead, the Missouri Supreme Court held that the order to produce the telegrams was overly broad, and did not meet the requirements of the state equivalent of the Fourth Amendment. As part of this holding, they rejected <em>Babcock</em>, and required a higher standard of specificity than that lower federal court. The logic of their arguments is quite similar to those of the the 1878 <a class="zem_slink" title="Supreme Court of the United States" rel="geolocation" href="http://maps.google.com/maps?ll=38.8907083333,-77.0043444444&amp;spn=1.0,1.0&amp;q=38.8907083333,-77.0043444444 (Supreme%20Court%20of%20the%20United%20States)&amp;t=h">United States Supreme Court</a> decision when it protected postal mail in <em>Ex parte Jackson</em> (although the Missouri Supreme Court did not cite to <em>Jackson</em>, although the petitioner did). In the end, then, they quashed the subpoena.</p> <p><strong>Federal Court, New York, 1883</strong></p> <p>In the 1883 case of <em>Wertheim</em>, a federal court in New York agreed with <em>Ex parte Brown&#8217;s </em>approach to privilege when it summarized the law as follows:</p> <blockquote><p>On the ground of privileged communications it has been attempted by the officers of telegraph companies to withhold copies of dispatches in their hands when required as evidence in courts of justice. This attempt, however, has not succeeded. It is held that telegraph messages in the hands of officers of the company are not privileged communications; and they must be produced when ordered by a <em>subpoena duces tecum</em>, any rule or by-law of the corporation to the contrary notwithstanding.</p></blockquote> <p>The federal court made no reference to the Fourth Amendment. It explicitly followed <em>Babcock</em> in allowing broad subpoenas, provided they met certain limited standards of minimal specificity.</p> <p><strong>A Treatise on Telegraph Law, 1920</strong></p> <p>By 1920, the question on privilege appeared firmly settled, and the Missouri Supreme Court&#8217;s arguments regarding search and seizure seemed essentially lost:</p> <blockquote><p>A telegraph company is not privileged as to messages transmitted by it; but on the other hand, such messages are not to be made public by the telegraph company. (William W. Cook , <a href="http://books.google.com/books?id=tHa1AAAAIAAJ">A Treatise on Telegraph Law</a>, 203)</p></blockquote> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/an-argument-for-the-inviolability-of-telegraphic-correspondence/">An argument for the &#8220;Inviolability of Telegraphic Correspondence&#8221;</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">The Fourth Amendment: from property to people</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=235ce25e-cbbc-4752-881c-f10abccdf69d" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The long-forgotten “mere evidence” rule" https://inpropriapersona.com/articles/the-long-forgotten-mere-evidence-rule/ Tue, 12 Apr 2011 17:00:57 +0000 2a16470af87ff3a2d49c0fdcb51b27b8 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/41596622@N00/5601431616"><img title="United States v. Boyd, slanted" src="http://farm6.static.flickr.com/5309/5601431616_a83c4581a5_m.jpg" alt="United States v. Boyd, slanted" width="240" height="135" /></a><figcaption class="wp-caption-text">Image by krisnelson via Flickr</figcaption></figure> </div> <p>In 1886, the <a class="zem_slink" title="Supreme Court of the United States" rel="geolocation" href="http://maps.google.com/maps?ll=38.8907083333,-77.0043444444&amp;spn=1.0,1.0&amp;q=38.8907083333,-77.0043444444 (Supreme%20Court%20of%20the%20United%20States)&amp;t=h">Supreme Court</a> in <a href="http://scholar.google.com/scholar_case?case=9067527596654000149">Boyd v. United States</a> held that compelling production of business records as part of a customs proceeding violated the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment’s</a> protections against unreasonable searches and seizure (and the Fifth’s, against self incrimination). A later ruling, <a href="http://scholar.google.com/scholar_case?case=12360786866493551649">Gouled v. United States</a> (1921), solidified the &#8220;<a href="http://definitions.uslegal.com/m/mere-evidence-rule/">mere evidence</a>&#8221; rule, forbidding warrants to search for documents that were themselves not “instrumentalities” or contraband. The rule, based on common-law principled discussed in <a href="http://www.bailii.org/ew/cases/EWHC/KB/1765/J98.html">Entick</a>, lasted well into the twentieth century before being abandoned:</p> <blockquote><p>Purely evidentiary (but &#8220;nontestimonial&#8221;) materials, as well as contraband and fruits and instrumentalities of crime, may now be searched for and seized under proper circumstances. (See <a href="http://scholar.google.com/scholar_case?case=91164524422769366">Warden v. Hayden</a>, 1967).</p></blockquote> <p>Business and computer records, whether on paper or not, are seizable, even if they themselves are not illegal. Antonin Scalia, a strong proponent of originalist understandings of the <a class="zem_slink" title="United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/United_States_Constitution">Constitution</a>, has been supportive a flexible interpretation of the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a>&#8211;but what if <em>Boyd</em> was right?</p> <p>If it should turn out that <em>Boyd v. United States</em> correctly read the original understanding, originalist justices would be required to rethink a hugely important body of modern law&#8211;the one authorizing seizure or subpoena of business records, including computer records. (See <a href="http://findarticles.com/p/articles/mi_hb3086/is_2_24/ai_n29437662/pg_2/?tag=content;col1">Reconstructing the Fourth Amendment: A History of Search and Seizure</a>)</p> <p>The goal of the “mere evidence” rule was to protect privacy, and was based on property rights&#8211;the government had right to contraband or stolen property, but not to an individuals private papers:</p> <blockquote><p>[O]ne primary purpose was to protect the citizen&#8217;s privacy. <em>Entick</em> repeatedly excoriated the violation of privacy involved in examining a person&#8217;s secret papers. <em>Boyd</em> stressed that the principles of <em>Entick</em> were designed to protect the &#8220;privacies of life.&#8221; In <em>Zurcher v. United States</em>, Justice Stevens stated, &#8220;[t]he practical effect of the rule prohibiting the issuance of warrants to search for mere evidence was to narrowly limit . . . the character of the privacy interests that might be affected by an unannounced police search.&#8221; In short, although the scope of the mere evidence rule was defined in terms drawn from property law, a major purpose of the rule was to protect personal privacy by limiting the government&#8217;s authority to search. (Russell W. Galloway, Jr., The Intruding Eye: A Status Report on the Constitutional Ban against Paper Searches, 1982)</p></blockquote> <p>The Supreme Court in the 1960s moved away from this property-based understanding of the Fourth Amendment in cases like <em>Katz</em> and <em>Hayden </em>to one <a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">focused on <em>people</em></a>. This shift had the twin effects of granting Fourth Amendment protections to telephone conversations while also opening up the seizure of “mere evidence.”</p> <p>Since I am currently research telegrams and the Fourth Amendment, I have to wonder why they did not receive this protection. After all, since telegrams were generally seized as evidence to prove a crime (and not as illegal items themselves), they clearly fall in the category of “mere evidence.” So why are there examples of their seizure contrary to this understanding? Why were other kinds of papers protected from seizure by the rule, while telegrams were not? Why did postal mail receive exactly this explicit protection in Boyd, but no court did the same for telegrams?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">The Fourth Amendment: from property to people</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/an-argument-for-the-inviolability-of-telegraphic-correspondence/">An argument for the &#8220;Inviolability of Telegraphic Correspondence&#8221;</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=55f5c18d-e93f-45fb-9297-af7fff9aa447" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "An argument for the “Inviolability of Telegraphic Correspondence”" https://inpropriapersona.com/articles/an-argument-for-the-inviolability-of-telegraphic-correspondence/ Wed, 06 Apr 2011 16:30:29 +0000 c2b00bf42ebb3df8c01397bdf089f1a5 <p><a href="http://www.flickr.com/photos/krisnelson/5604716876/in/photostream/"><img class="alignright" title="Page from the American Law Register" src="http://farm6.static.flickr.com/5270/5604716876_323fb2e5f4_m.jpg" alt="" width="212" height="240" /></a>Former Michigan Supreme Court Justice <a class="zem_slink" title="Thomas M. Cooley" rel="wikipedia" href="http://en.wikipedia.org/wiki/Thomas_M._Cooley">Thomas M. Cooley</a>, in a forward-looking article, advocated for extending <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> protections to telegrams in 1879. Cooley articulated a position that both foreshadowed 20th century arguments over telephone wiretaps, and reflected his late 19th century concerns.</p> <p>Cooley&#8217;s &#8220;<a href="http://books.google.com/books?id=CmhKAAAAYAAJ&amp;pgis=1">Inviolability of Telegraphic Correspondence</a>&#8221; advocated for protecting correspondence sent via this relatively new technology from “unreasonable <a class="zem_slink" title="Search and seizure" rel="wikipedia" href="http://en.wikipedia.org/wiki/Search_and_seizure">searches and seizures</a>.&#8221; As support, Cooley turned first to the influential English case of <a class="zem_slink" title="Entick v Carrington" rel="wikipedia" href="http://en.wikipedia.org/wiki/Entick_v_Carrington">Entick v. Carrington</a>, in which English government agents entered a private domicile and seized private papers.  Cooley writes:</p> <blockquote><p>The case [<em>Entick</em>], as will be seen, did not by any means turn wholly upon the breaking into the tenement and the forcing of locks, but it brought to the front as a principal grievance the injury the subject might sustain by the exposure of his private papers to the scrutiny and misconception of strangers.</p></blockquote> <p>The key for Cooley&#8211;unlike some other commentators&#8211;was the &#8220;exposure of &#8230; private papers to the scrutiny and misconception of strangers.&#8221; For Cooley, telegrams are exactly the same as private papers, and should be available for use as evidence only in regards to the telegraph company (which has a &#8220;qualified property interest in them&#8221;), the sender, and the receiver. He analogized telegrams to postal mail, where &#8220;every invasion of it [the post] has been punishable&#8221; (though the Supreme Court only <a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">explicitly gave Fourth Amendment protection to postal mail</a> the year before Cooley&#8217;s article, it did so based on a long-standing understanding that postal mail ought to be inviolable).</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignleft"><a href="http://www.flickr.com/photos/70297824@N00/119939070"><img title="Found: Love Letter -- Envelope" src="http://farm1.static.flickr.com/52/119939070_acb5b0b969_m.jpg" alt="Found: Love Letter -- Envelope" width="240" height="149" /></a><figcaption class="wp-caption-text">Image by Dan Coulter via Flickr</figcaption></figure> </div> <p>Telegraphic communications were protected to some degree by state law, but above all by company regulations (i.e., essentially <em>contract</em> law) formulated to encourage citizens to entrust their correspondence to the telegraph company:</p> <blockquote><p>For the most part telegraph companies were left to make rules and regulations to govern their own business. &#8230; The most important regulation which has been established by statute is that inviolable secrecy shall be preserved in respect to messages by those through whose hands they shall pass; severe penalties being imposed upon operators who violate this injunction.</p></blockquote> <p>Cooley wished to extend constitutional protection to telegrams, &#8220;by those maxims of the common law by which individual liberty is guarded and protected.&#8221; But he found no &#8220;express provision of the Constitution&#8221; by which to do this, although he uses the language of the Fourth Amendment, and looked instead to &#8220;previous history in the light of which constitutions must be interpreted.&#8221;</p> <p>Despite relying on <em>Entick</em>, which dealt with an agent of the state, Cooley, foreshadowing <a class="zem_slink" title="Samuel Warren (English lawyer)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Samuel_Warren_%28English_lawyer%29">Samuel Warren</a> and <a class="zem_slink" title="Louis Brandeis" rel="wikipedia" href="http://en.wikipedia.org/wiki/Louis_Brandeis">Louis Brandeis</a>, is less concerned with state surveillance than he is with private abuses. Cooley frames his worries in terms of protection against &#8220;competitors and gossips&#8221;:</p> <blockquote><p>Telegraphic communication, if not inviolable, offers a perpetual temptation to malice. A legislative committee may employ the power of calling for it to blacken the reputation of an opponent; a business rival may be annoyed and perhaps seriously compromised by means of it; a family feud may be avenged or quickened by bringing out confidential messages, and so on.</p></blockquote> <p>In this sense, Cooley&#8217;s approach, while suggestive of 20th century extensions of the Fourth Amendment, reflects 19th century concerns. Communication was becoming more rapid, and newspapers&#8211;along with gossip columns&#8211;were booming. The federal government had limited powers, and modern police forces were only just developing.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 180px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:Brandeisl.jpg"><img title="Wilson appointed Louis Brandeis, the first Jew..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/a/a6/Brandeisl.jpg/300px-Brandeisl.jpg" alt="Wilson appointed Louis Brandeis, the first Jew..." width="180" height="257" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Despite similarities, Cooley&#8217;s view is distinct from Warren and Brandeis&#8217;. As Neil Richards and Daniel Solove, in &#8220;Privacy&#8217;s Other Path: Recovering the Law of Confidentiality&#8221; <a href="https://inpropriapersona.com/2011/02/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">suggest about Americans pre-1890</a>, what Cooley seemed more concerned with was the <em>confidentiality</em> of material entrusted for transit between people, <em>not</em> with the secrecy accorded to private materials intended for one&#8217;s own use. Cooley was concerned with the revelation of private correspondence, <em>not </em>with protecting the sanctity of the <em>individual</em> (in contrast to Warren and Brandeis). Cooley argued against</p> <blockquote><p>the right to compel the telegraph authorities to produce private messages which, by the course of the business are necessarily left in their possession, but under a confidence imposed by the law [or by company regulation].</p></blockquote> <p>Cooley&#8217;s ideas, though still clearly enmeshed in 19th century concerns, prefigure 20th century understandings of the Fourth Amendment. Cooley, for example, believes that it should make no difference <em>where</em> the private correspondence was stored&#8211;the potential damage and exposure are equal:</p> <blockquote><p>If one&#8217;s private correspondence is to be given to the public, the method is not important; it is equally injurious whether done by sending an officer to force locks and take it, or by compelling the person having the custody to produce it.</p></blockquote> <p>In short, argues Cooley, what is the difference between papers stored in the home and correspondence held at a telegraph office? This idea is not dissimilar to the majority opinion in <a href="http://en.wikipedia.org/wiki/Katz_v._United_States">Katz v. United States</a> that the &#8220;Fourth Amendment protects people, not places.&#8221; In Cooley&#8217;s view, if a person’s correspondence is open to seizure in a telegraph office, then why should it be more protected in his home?</p> <blockquote><p>And if a search in a telegraph office and a seizure of a man&#8217;s private correspondence is not an unreasonable search and seizure, on what reasons could the search for and exposure of his private journals be held to be an invasion of his constitutional right?</p></blockquote> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">The Fourth Amendment: from property to people</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">Law of privacy vs. confidentiality in the nineteenth century</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ab1760d6-7e20-48b7-b7b9-63536bfc771d" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The slow pace of Fourth Amendment change" https://inpropriapersona.com/articles/the-slow-pace-of-fourth-amendment-change/ Mon, 04 Apr 2011 23:25:42 +0000 37cf4e2f80e30dc1c021b9c9a6a79d5a <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/13434526@N00/3360322975"><img title="Telephone" src="http://farm4.static.flickr.com/3564/3360322975_9f5f2025b1_m.jpg" alt="Telephone" width="240" height="215" /></a><figcaption class="wp-caption-text">Image by plenty.r. via Flickr</figcaption></figure> </div> <p>In <a href="http://heinonline.org/HOL/LandingPage?collection=journals&amp;handle=hein.journals/flr78&amp;div=12&amp;id=&amp;page=">Protections for Electronic Communications: the Stored Communications Act and the Fourth Amendment</a>, Alexander Scolnik wrote:</p> <blockquote><p>As technology evolves, giving individuals new forms of communicating and government agents increasingly sophisticated tools for surveillance, courts have had to continually interpret the Fourth Amendment and define the extent of its reach in light of these new advances.</p></blockquote> <p>He also noted that even <a class="zem_slink" title="Antonin Scalia" href="http://en.wikipedia.org/wiki/Antonin_Scalia" rel="wikipedia">Justice Antonin Scalia</a>, who tends to like strict originalist interpretations, has suggested that <a href="http://scholar.google.com/scholar_case?case=15840045591115721227"> the Fourth Amendment requires flexible interpretation</a>.</p> <p>There have been several extensions of the <a href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> to deal with new technologies, but Constitutional protections have not come quickly.</p> <p>First, the postal service: Established by Benjamin Franklin in 1775, official postal mail did not receive Fourth Amendment protection until <a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">ex parte Jackson</a> in 1878, more than a hundred years later.</p> <p>Second, the telegraph: In 1844, <a class="zem_slink" title="Samuel Morse" href="http://en.wikipedia.org/wiki/Samuel_Morse" rel="wikipedia">Samuel Morse</a> transmitted the America’s first telegram (&#8220;What hath God wrought&#8221;), but despite arguments that telegrams deserved protection (see, for example, <a class="zem_slink" title="Thomas M. Cooley" href="http://en.wikipedia.org/wiki/Thomas_M._Cooley" rel="wikipedia">Thomas M. Cooley&#8217;s</a> 1879 <a href="http://books.google.com/books?id=CmhKAAAAYAAJ&amp;pg=PA65&amp;lpg=PA65">Inviolability of Telegraphic Correspondence</a> ) the courts have never explicitly granted such protection to telegrams. In essence, technology (in the form of the telephone) made the legal issue moot.</p> <p>Third, the telephone: <a class="zem_slink" title="Alexander Graham Bell" href="http://en.wikipedia.org/wiki/Alexander_Graham_Bell" rel="wikipedia">Alexander Graham Bell</a> obtained a patent in 1876 on &#8220;an apparatus for transmitting vocal or other sounds telegraphically.&#8221; In <em>Olmstead</em> (1928), the Court refused to extend Fourth Amendment protections to the telephone, then changed its mind in 1967, nearly a century after Bell’s patent.</p> <p>Fourth, electronic mail: SDC and MIT had an early form of email in 1965, with the &#8220;@&#8221; sign being added to <a class="zem_slink" title="ARPANET" href="http://en.wikipedia.org/wiki/ARPANET" rel="wikipedia">ARPANET</a>’s early system around 1969. Forty-some years later, the Sixth Circuit, in <em>Warshak</em>, has suggested that <a href="http://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">stored email has Fourth Amendment protections</a>, but the Supreme Court has yet to rule.</p> <p>So, yes, courts have continually interpreted/extended the Fourth Amendment, but it hasn’t been quick!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/04/the-fourth-amendment-from-property-to-people/">The Fourth Amendment: from property to people</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f10fbab1-d18a-4578-a93f-3febd4ac1f24" alt="" /></div> "The Fourth Amendment: from property to people" https://inpropriapersona.com/articles/the-fourth-amendment-from-property-to-people/ Sat, 02 Apr 2011 23:48:07 +0000 5c63c9dff9a7fc512e03125155963b34 <p>American common law is founded on English legal precedents. These pre-18th century cases were, in fact, binding on American courts (pending their modification as American common law developed). Additionally, these cases provided context and justification for many of the original amendments found in the Bill of Rights.</p> <p>For the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a>&#8211;the prohibition against unreasonable search and seizure&#8211;one of these foundational cases was <a href="http://www.bailii.org/ew/cases/EWHC/KB/1765/J98.html">Entick v. Carrington</a> (1765). In <em>Entick</em>, agents of the King and acting under the orders of Lord Halifax, broke into the private residence of John Entick and seized his private papers.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 180px" class="wp-caption alignright"><a href="http://en.wikipedia.org/wiki/File:John_Entick.jpg"><img class=" " title="John Entick" src="http://upload.wikimedia.org/wikipedia/en/thumb/d/da/John_Entick.jpg/300px-John_Entick.jpg" alt="John Entick" width="180" height="322" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>In <a href="http://en.wikipedia.org/wiki/Entick_v_Carrington">broadest terms</a>, Lord Camden, author of the final opinion, ruled &#8220;that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.&#8221; In these broad terms, then, the case established a core principle in English and then American law that limited the breadth of executive power.</p> <aside> Note: recent scholarship by legal writers like Orin Kerr has called into question the original centrality of <em>trespass</em> to Fourth Amendment doctrine before the twentieth century. For more on this, see <a href="https://inpropriapersona.com/notes/2018/06/orin-kerr-trespass-was-never-the-exclusive-fourth-amendment-test-2012/">Orin Kerr: trespass was never the exclusive Fourth Amendment test (2012)</a>. </aside> <p>In terms specific to <a href="http://caselaw.lp.findlaw.com/data/constitution/amendment04/01.html">what would become the Fourth Amendment</a>, the case emphasized the importance of a specific legal authorization (today we know this as a warrant, but that term has not always meant what it does today) to excuse the invasion of private property by government agents. Striking, and of key importance to Fourth Amendment jurisprudence all the way up to <a href="https://inpropriapersona.com/2007/03/katz-and-berger-and-reasonable.html">Katz v. United States</a> at least, is the focus on <em>trespass</em> and <em>private property</em>. Warrants were considered required to search a person’s home (or other physical space, like an office), but there was really not much thought given to papers or materials searched outside &#8220;<a href="http://scholar.google.com/scholar_case?case=9067527596654000149">the sanctity of a man&#8217;s home</a>.&#8221;</p> <p>In 1877, <em>ex parte Jackson</em> extended the requirement of a &#8220;warrant, issued upon oath or affirmation&#8221; to the postal mail. Justice Field wrote:</p> <blockquote><p>Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.</p></blockquote> <p>In other words, the court built upon protections against unreasonable searches and seizures &#8220;in their own domiciles&#8221; to papers in transit through the postal system.</p> <p>The 1886 case of <a href="http://scholar.google.com/scholar_case?case=9067527596654000149">Boyd v. United States</a> continued to extend Fourth Amendment protections beyond searching someone&#8217;s home (or similar private property). Looking to both the Fourth and Fifth Amendments, the Supreme Court in <em>Boyd </em>struck down an attempt for force a defendant to produce private papers for inspection. In his opinion, Justice Bradley wrote:</p> <blockquote><p>It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property &#8230; which underlies and constitutes the essence of Lord Camden&#8217;s judgment.</p></blockquote> <p>Clearly, the focus on <em>property</em> is still present in both, but in <em>Boyd</em>, the Court did recognize the importance of &#8220;personal security&#8221; and &#8220;personal liberty,&#8221; instead of focusing on trespass onto real property. Similarly, in <em>ex parte Jackson</em>, the Court protected private papers in transit outside the home, with no almost no regard to trespass at all. Both cases did not involve physical trespass by government agents into a person&#8217;s home, but rather focused protection on &#8220;papers&#8221; as an extension of personal liberty, and not on the &#8220;sanctity of the home.&#8221;</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignleft"><a href="http://www.flickr.com/photos/94211698@N00/4389942463"><img title="Oldschool wiretapping" src="http://farm5.static.flickr.com/4071/4389942463_a5d0b489b7_m.jpg" alt="Oldschool wiretapping" width="240" height="156" /></a><figcaption class="wp-caption-text">Image by nizger via Flickr</figcaption></figure> </div> <p><a href="http://scholar.google.com/scholar_case?case=5577544660194763070">Olmstead v. United States</a> (1928) refused to continue this extension to wiretaps that occurred &#8220;without trespass upon any property of the defendants.&#8221; The Court goes on to argue that the Fourth Amendment only protects <em>physical </em>things:</p> <blockquote><p>The Amendment itself shows that the search is to be of material things&#8211;the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.</p></blockquote> <p>In short, Justice Taft says,</p> <blockquote><p>The Amendment does not forbid what was done here [a wiretap]. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.</p></blockquote> <p>It was not until <em>Katz</em> in 1965 that the Supreme Court returned to the tradition of <em>ex Parte Jackson</em> and held that &#8220;the Fourth Amendment protects people, not places,&#8221; and laid the groundwork for warrant requirements to tap telephone lines and, later, to seize emails or monitor Internet traffic.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/constitutionalizing-the-sanctity-of-the-mails/">Constitutionalizing the sanctity of the mails</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d51e5285-edce-43cf-9a6c-ad8576b26394" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Working around the rules to give you movies on demand" https://inpropriapersona.com/articles/working-around-the-rules-to-give-you-movies-on-demand/ Mon, 21 Mar 2011 17:30:57 +0000 a6316dada6dfb5d6c57a7c18069452c7 <p>&nbsp;</p> <figure style="max-width: 200px" class="wp-caption alignright"><a href="http://www.crunchbase.com/company/zediva"><img class="zemanta-img-inserted zemanta-img-configured" title="Image representing Zediva as depicted in Crunc..." src="http://www.crunchbase.com/assets/images/resized/0011/1661/111661v1-max-450x450.png" alt="Image representing Zediva as depicted in Crunc..." width="200" height="74" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> <p><a class="zem_slink" title="David Pogue" href="http://www.davidpogue.com/" rel="homepage">David Pogue</a> writes about a new startup that&#8217;s trying to work around the limitations media companies have placed on movie providers like <a class="zem_slink" title="Netflix" href="http://www.netflix.com/" rel="homepage">Netflix</a> and <a class="zem_slink" title="redbox" href="http://www.redbox.com" rel="homepage">Redbox</a>:</p> <blockquote><p>At its California data center, Zediva has set up hundreds of DVD players. They’re automated, jukebox-style. You’re not just renting a movie; you’re actually taking control of the player that contains the movie you want. The DVD is simply sending you the audio and video signals, as if it were connected to your home with a really, really long cable.</p> <p>via <a href="http://www.nytimes.com/2011/03/17/technology/personaltech/17pogue.html">A Clever End Run Around the Movie-Streaming Gremlins &#8211; NYTimes.com</a>.</p></blockquote> <p><a href="http://www.zediva.com/">Zediva</a> seems pretty sure all this is OK under copyright law (&#8220;We’re confident that the law allows you to watch a DVD that you’ve rented,&#8221; said a company representative), but I thought I&#8217;d look a little deeper into the law. After all, the plan seems remarkably similar to an attempt by a hotel to do something similar for use of its guests. In <a href="http://scholar.google.com/scholar_case?case=6496522323472709052">On Command Video Corp. v. Columbia Pictures</a>, 777 F. Supp. 787 (Dist. Court, ND California 1991), a federal court found that using a system of <a class="zem_slink" title="Videocassette recorder" href="http://en.wikipedia.org/wiki/Videocassette_recorder" rel="wikipedia">VCRs</a> to play movies for guests violates copyright as a &#8220;public performance.&#8221; The hotel room itself is not a &#8220;public place,&#8221; but the transmission is <em>to the public</em>&#8211;and therefore infringing under 17 U.S.C. § 101.</p> <p>On the other hand, in <a href="http://scholar.google.com/scholar_case?case=775114857087738280">Columbia Pictures Industries, Inc. v. Professional Real Estate Inv., Inc.</a>, 866 F. 2d 278 (Court of Appeals, <a class="zem_slink" title="United States Court of Appeals for the Ninth Circuit" href="http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Ninth_Circuit" rel="wikipedia">9th Circuit</a> 1989), the Court of Appeals held that renting videotapes in a hotel to guests to watch in their rooms is <em>not</em> a violation of copyright.</p> <p>Similar to <em>On Command</em>, in <a href="http://scholar.google.com/scholar_case?case=17139626668750628957">Columbia Pictures Industries v. Redd Horne</a>, 749 F. 2d 154 (Court of Appeals, 3rd Circuit 1984), the 3rd Circuit held that showing videotapes played on centrally located VCRs to patrons in private booths <em>was</em> a &#8220;public performance&#8221; because the booths were generally open to the public and was thus also infringing under 17 U.S.C. § 101.</p> <p>Zediva&#8217;s system sends materials to private homes, <em>not </em>to a &#8220;public place.&#8221; This likely gets it out of the <em>Redd Horne</em> fact pattern. Nonetheless, Zediva does transmit <em>to the public</em>. Unfortunately, this does make it sound rather like <em>On Command</em>, so I would be very interested to hear details as to how Zediva&#8217;s situation is distinguishable, or why they should not fall under the same logic used in <em>On Command</em>.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techland.time.com/2011/03/16/zedivas-movie-rentals-are-50-cheaper-than-itunes/">Zediva&#8217;s Movie Rentals Are 50% Cheaper Than iTunes</a> (techland.time.com)</li> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-19882_3-20044057-250.html?part=rss&amp;subj=Webware">Crazy Zediva exploits copyright loophole to stream movies you can&#8217;t get online elsewhere</a> (news.cnet.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.wired.com/threatlevel/2011/03/zediva-copyright/">Is Zediva&#8217;s New-Release Movie Streaming Service Legal?</a> (wired.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=762d0f76-a57d-4718-aa96-9c19f064e3e1" alt="" /></div> "What was the “right to privacy” in 1948?" https://inpropriapersona.com/articles/what-was-the-right-to-privacy-in-1948/ Sat, 12 Mar 2011 00:55:01 +0000 facb355ffe90f0efe28d9566787ff23d <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"></div> <p><a href="https://inpropriapersona.com/what-was-the-right-to-privacy-in-1948/feinberg-1948/" rel="attachment wp-att-5623"><img class="alignright size-medium wp-image-5623" title="Feinberg article from 1948" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_198/v1514416593/feinberg-1948_tqhcpk.jpg" alt="" width="198" height="300" /></a>It took nearly 50 years for <a class="zem_slink" title="Louis Brandeis" href="http://en.wikipedia.org/wiki/Louis_Brandeis" rel="wikipedia">Justice Brandeis</a>&#8216; ground-breaking law review article on the <a class="zem_slink" title="Privacy law" href="http://en.wikipedia.org/wiki/Privacy_law" rel="wikipedia">right to privacy</a> to begin to widely influence judicial decisions. By 1948, though, a dozen or so states had begun to recognize the right as a part of <a class="zem_slink" title="Common law" href="http://en.wikipedia.org/wiki/Common_law" rel="wikipedia">common law</a> &#8212; i.e., not as a <em>Constitutional </em>right nor as a <em>statutory </em>right, but rather as part of judge-made (or, in the sense of an earlier era, judge-<em>recognized</em> law).</p> <p>But what was the right that judges were beginning to recognize? <a class="zem_slink" title="Wilfred Feinberg" href="http://en.wikipedia.org/wiki/Wilfred_Feinberg" rel="wikipedia">Wilfred Feinberg</a>&#8216;s 1948 &#8220;<a href="http://www.jstor.org/stable/info/1118375">Recent Developments in the Law of Privacy</a>&#8221; suggests that the doctrine had developed further even as it was applied by judges:</p> <blockquote><p>[I]n addition to the interest in &#8220;privacy&#8221; as ordinarily understood, at least three separate interests were protected: interest in one&#8217;s history, interest in one&#8217;s likeness, interest in one&#8217;s name.</p></blockquote> <p>Interestingly, none of the interests Feinberg decides encapsulates a sense of a &#8220;right to privacy&#8221; as being the right of a citizen to be free from governmental interference in their private life or as an extension of, say, the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution" rel="wikipedia">Fourth Amendment</a>. Instead, they are quite evidently an extension of Brandeis&#8217; original reaction against newspapers digging into an individual&#8217;s life and sharing that for the prurient interest of a growing public.</p> <p>So, first, the protection of &#8220;life history&#8221; is the right of a person to &#8220;keep private life private,&#8221; but it does not extend to protection against disclosure if &#8220;the public interest in obtaining information outweighs protection of his personal interest.&#8221;</p> <p>Second, Feinberg describes the interest held by a person &#8220;in his likeness [which] can be injured either by disclosure or appropriation.&#8221; Disclosure via publication of a photograph of a person in public is not actionable. He posits a theory of <em>waiver</em>: &#8220;by exposing your countenance to public view, you waive the right to protest disclosure to others of your likeness caught in a photograph.&#8221; (Compare this idea to the idea of a &#8220;<a class="zem_slink" title="Expectation of privacy" href="http://en.wikipedia.org/wiki/Expectation_of_privacy" rel="wikipedia">reasonable expectation of privacy</a>&#8221; as developed later in <em>Katz.</em>)</p> <p>Appropriation, on the other hand, is actionable, since any waiver only implies &#8220;consent to having others see your face, not consent to having the defendant use it for his own financial benefit.&#8221; Additionally, enforcement (unlike with disclosure) is easier, and likelihood of actual harm increased, so so many more people are exposed to the image.</p> <p>Thirdly, Feinberg discusses the &#8220;Interest in Name&#8221;: appropriation of a person&#8217;s name without their consent is actionable on the basis of a <em>privacy violation.</em> Thus, it is not merely &#8220;fraudulent&#8221; (and thus actionable on a criminal basis or on the basis of reliance or similar by the recipient), but also on the basis of violating a person&#8217;s interest in their own name <em>per se.</em></p> <p>And finally, Feinberg returns to discuss what is meant by the more &#8220;normal&#8221; definition of a &#8220;right to privacy&#8221;: &#8220;<em>i.e., </em>not to be looked at, not to be followed, not to be written to, etc.&#8221; (He refers to <a href="http://scholar.google.com/scholar_case?about=12520309099158026973&amp;q=85+N.E.+32&amp;hl=en&amp;as_sdt=2,5">Pritchett v. Board of Comm&#8217;rs</a> (1908), <a href="http://scholar.google.com/scholar_case?about=8938423457006103707&amp;q=265+S.W.+233&amp;hl=en&amp;as_sdt=2,5">Hawks v. Yancey</a> (1924), and <a href="http://scholar.google.com/scholar_case?about=2456283108193583651&amp;q=151+Wis+537&amp;hl=en&amp;as_sdt=2,5">Shultz</a> (1913) to support his description.)</p> <p>This right <em>does</em> include protection from eavesdropping devices, &#8220;entirely apart from trespass&#8221; (see <a href="http://scholar.google.com/scholar_case?about=8351308250828911873&amp;q=McDaniel+v.+Atlanta+Coca-Cola+Bottling+Co.&amp;hl=en&amp;as_sdt=2,5">McDaniel v. Atlanta Coca-Cola Bottling Co.</a> (1939)). Nonetheless, Feinberg&#8217;s discussion situations the right as being quite similar to trespass in many respects.</p> <p>Feinberg&#8217;s discussion is an intriguing look into the state of privacy law as of 1948, and situate it squarely in line with Brandeis&#8217; article, which also reacted to prevent the potential harm of new technologies:</p> <blockquote><p>The possibilities of injury to the interests [the privacy doctrine] protects will increase with wide commercialization of such new means of communication as television and facsimile newspapers.</p></blockquote> <p>&nbsp;</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">Law of privacy vs. confidentiality in the nineteenth century</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/stepping-stone-to-internet-privacy-the-telegraph/">Stepping stone to Internet privacy: the telegraph</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://socyberty.com/law/do-we-have-a-right-to-privacy/">Do We Have a Right to Privacy?</a> (socyberty.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=af2d7720-18c8-4035-86ae-ee52442015f4" alt="" /></div> "Constitutionalizing the sanctity of the mails" https://inpropriapersona.com/articles/constitutionalizing-the-sanctity-of-the-mails/ Tue, 22 Feb 2011 03:29:24 +0000 256dd8f83804273b9e2d75f43b0daa76 <p><a href="http://www.flickr.com/photos/danisarda/2545907577/sizes/s/in/photostream/"><img class="alignright" title="&quot;Red Pillar Box&quot; by Flickr user ~Oryctes~, used under a Creative Commons license." src="http://farm4.static.flickr.com/3121/2545907577_5915c29dfa_m.jpg" alt="" width="160" height="240" /></a>In &#8220;<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1079958">Wiretapping before the Wires: The Post Office and the Birth of Communications Privacy</a>,&#8221; Anuj C. Desai of the <a class="zem_slink" title="University of Wisconsin Law School" rel="geolocation" href="http://maps.google.com/maps?ll=43.074644,-89.402435&amp;spn=0.01,0.01&amp;q=43.074644,-89.402435 (University%20of%20Wisconsin%20Law%20School)&amp;t=h">University of Wisconsin Law School</a> explains that the extension of the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> to cover postal mail, and then later to telephones, is based not so much on the inherently Constitutional nature of opening mail, but instead on the increasingly firm belief in the sanctity of the mail as expressed by Congress, legislators, and the public.</p> <p>He writes, &#8220;The general process, of which <em><a href="http://supreme.justia.com/us/96/727/case.html">Ex parte Jackson</a></em> is an example, can be described briefly in four steps: (1) Congress passes a statute; (2) the statutory provision gives an institution certain attributes; (3) over time, social practice embeds those attributes into the institution; and (4) the courts then take those attributes and write them into constitutional law.&#8221;</p> <p>In other words, the 1878 case of <em>Ex parte Jackson</em> was not based on originalism. It does not appear that the Founders really thought of postal mail&#8211;at least, the way it ran at the time&#8211;as being protected by the Fourth Amendment, although they did inherit the British sense of the importance of protecting its confidentiality. Desai notes that Professor <a href="http://en.wikipedia.org/wiki/Telford_Taylor">Telford Taylor</a> explained this when he noted, &#8220;It is quite impossible to spell out an original understanding that the mail, or any future means of general communication, were to fall within the &#8216;persons, houses, papers, and effects&#8217; protected by the fourth amendment.&#8221;</p> <p>To summarize Desai&#8217;s argument in more detail: pre-<a class="zem_slink" title="American Revolutionary War" rel="wikipedia" href="http://en.wikipedia.org/wiki/American_Revolutionary_War">Revolutionary War</a> policies and procedures generally protected the confidentiality of postal mail, but did so in a spotty enough fashion in practice that American colonists saw the importance of greater protections against government spying. Nonetheless, postal mail was not explicitly placed under Fourth Amendment protections, and instead statutory law (and, arguably, custom) protected the confidentiality of the mails.</p> <p>According to Desai, these statutory protections became so ingrained that, when the federal government finally attempted in the 1870s to routinely censor letters (in the guise of enforcing a prohibition against lotteries), the Supreme Court felt that the importance of protecting the postal system from government <a class="zem_slink" title="Search and seizure" rel="wikipedia" href="http://en.wikipedia.org/wiki/Search_and_seizure">search and seizure</a> had finally risen to the level of requiring Constitutional protections. The Supreme Court then enshrined what had been statute and custom into the firmer bedrock of the Constitution.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/the-telegraph-and-business-invasions-of-privacy/">The telegraph and business invasions of privacy</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/">Law of privacy vs. confidentiality in the nineteenth century</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/stepping-stone-to-internet-privacy-the-telegraph/">Stepping stone to Internet privacy: the telegraph</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=49de740a-fbc5-493a-88bd-f37ff1204f57" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "New technologies lead to new constitutional protections" https://inpropriapersona.com/articles/new-technologies-lead-to-new-constitutional-protections/ Sun, 13 Feb 2011 19:30:14 +0000 b5c18b2ca37d9f20bc125cef33e93691 <p><a href="http://www.flickr.com/photos/jonlewis/112175702/in/photostream/"><img class="alignright" title="&quot;s-curve and telegraph poles&quot; by Flickr user Jon-Lewis, used under a Creative Commons license" src="http://farm1.static.flickr.com/54/112175702_59f303fceb_m.jpg" alt="" width="240" height="240" /></a>The boom in transportation and communications technologies in the nineteenth century outpaced the pace of legal change. It was only through the emergence of new concerns around both privacy and confidentiality that people themselves began to realize their importance in a way never before imagined. Before the mid-nineteenth century, America was rural, and commerce mostly local; confidentiality was maintained through face-to-face communications and trust.</p> <p>Legal protections in the common law extended only minimally to protect this trust, as evidenced by the adoption of England’s <em><a href="http://www.bailii.org/ew/cases/EWHC/Ch/1849/J20.html">Prince Albert v. Strange</a></em> in American jurisprudence as well. The sanctity of the mails, too, was thought of in terms of protecting confidentiality through the trust placed in mail carriers and postal workers. At a time of smaller, less organized government, such protections&#8211;statutory, regulatory, or at common law&#8211;were also perceived in terms of private individuals (e.g., postmasters snooping for gossip), rather than as protections against either government intrusion or corporate malfeasance.</p> <p>The explosion of long-distance communications and business in the mid-to-late nineteenth century changed this at a fundamental level. A more powerful and organized administrative state&#8211;federal and local&#8211;began to have the capacity to investigate and control people through their communications. More powerful and monopolistic corporations, along with the growing importance of Wall Street financiers instead of local capital, generated distrust in those entrusted with confidential and private communications.</p> <p>In 1878, the <a class="zem_slink" title="Supreme Court of the United States" rel="geolocation" href="http://maps.google.com/maps?ll=38.8907083333,-77.0043444444&amp;spn=1.0,1.0&amp;q=38.8907083333,-77.0043444444 (Supreme%20Court%20of%20the%20United%20States)&amp;t=h">Supreme Court</a> recognized the potential for abuse by a state grown more powerful, and explicitly extended the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> to the mails. By 1890, Warren and <a class="zem_slink" title="Louis Brandeis" rel="wikipedia" href="http://en.wikipedia.org/wiki/Louis_Brandeis">Brandeis</a> reacted to the invasions of mass-market gossips into the world of the privileged by creating a new legal concept: the &#8220;right to privacy.&#8221; Telegraphs never received such explicit protections despite many attempts, and it was not until 1967 that telephone conversations became protected from government wiretaps, and the status of email is only just being worked out today in cases such as <em><a href="http://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf">United States v. Warshak</a></em> (6th Cir., 2010).</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignleft"><a href="http://www.flickr.com/photos/25419820@N00/1866330344"><img title="iPad Touch Email" src="http://farm3.static.flickr.com/2190/1866330344_44f8eccece_m.jpg" alt="iPad Touch Email" width="240" height="173" /></a><figcaption class="wp-caption-text">Image by factoryjoe via Flickr</figcaption></figure> </div> <p>Postal technologies steadily increased in professionalism and efficiency beginning at the end of the eighteenth century, but the mail did not receive Fourth Amendment protections until 1878. The telegraph began to change the face of communications in America beginning in the early 1840s, but was superseded by the telephone beginning in the early 1900s, which itself was not constitutionally protected until <em><a href="http://en.wikipedia.org/wiki/Katz_v._United_States">Katz</a></em> and <em>Berger</em> in 1967 (though whether it should be or not was extensively debated in 1928 in the <em><a href="http://www.google.com/url?sa=t&amp;source=web&amp;cd=1&amp;ved=0CBwQFjAA&amp;url=http%3A%2F%2Fwww.oyez.org%2Fcases%2F1901-1939%2F1927%2F1927_493&amp;ei=wzpXTbjTFpTGsAP_kLChDA&amp;usg=AFQjCNFc0DYgXxqeDgnOaRdW_YRrYjsq3g&amp;sig2=lDgBP1bQqoxjvIMVfmakTw">Olmstead</a></em> case). Email began to reshape modern communications in the early 1990s (although it was invented much earlier), and in 2010 is beginning to be seen as falling under constitutional protection, though <a class="zem_slink" title="Supreme court" rel="wikipedia" href="http://en.wikipedia.org/wiki/Supreme_court">the Supreme Court</a> has not yet spoken on the issue as yet.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/the-telegraph-and-business-invasions-of-privacy/">The telegraph and business invasions of privacy</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/stepping-stone-to-internet-privacy-the-telegraph/">Stepping stone to Internet privacy: the telegraph</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ebb34ff3-89dd-4f08-ad74-ffb9b2540729" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Law of privacy vs. confidentiality in the nineteenth century" https://inpropriapersona.com/articles/law-of-privacy-vs-confidentiality-in-the-nineteenth-century/ Thu, 10 Feb 2011 19:50:42 +0000 30698f8c6ddd01baae80fc3243df26dc <p><a href="http://www.flickr.com/photos/spunter/3363326374/"><img class="alignright" title="&quot;A law lord in stockings wig and silky gown&quot; by Flickr user Steve Punter, used under a Creative Commons license" src="http://farm4.static.flickr.com/3661/3363326374_a035ce7838_m.jpg" alt="" width="240" height="165" /></a>Neil Richards and Daniel Solove, in &#8220;<a href="http://www.concurringopinions.com/archives/2007/10/privacys_other_2.html">Privacy’s Other Path: Recovering the Law of Confidentiality</a>&#8221; (96 Geo. L.J. 124) write:</p> <blockquote><p>The familiar legend of privacy law holds that <a class="zem_slink" title="Samuel D. Warren (US attorney)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Samuel_D._Warren_%28US_attorney%29">Samuel Warren</a> and <a class="zem_slink" title="Louis Brandeis" rel="wikipedia" href="http://en.wikipedia.org/wiki/Louis_Brandeis">Louis Brandeis</a> &#8220;invented&#8221; the right to privacy in 1890, and that <a class="zem_slink" title="William Prosser" rel="wikipedia" href="http://en.wikipedia.org/wiki/William_Prosser">William Prosser</a> aided its development by recognizing four privacy torts in 1960. In this Article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, [but] took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual&#8217;s &#8220;inviolate personality.&#8221;</p></blockquote> <p>According to Richards and Solove, then, the &#8220;right to privacy&#8221; as we now understand it actually grew out of an earlier recognition of the right to confidentiality in certain situations. Warren and Brandeis then took this original principle of confidentiality, embodied in common-law decisions such as the English case of <em><a href="http://www.bailii.org/ew/cases/EWHC/Ch/1849/J20.html">Prince Albert v. Strange</a></em> (1849), and shifted it to focus on a newly developed right to privacy. Their goal? To protect individuals from a perceived new threat to their reputations and self-ownership by the growth of a new combination of technologies: photographs and new, faster printing presses of the booming newspaper industry. Essentially, the technologies that enable <a class="zem_slink" title="People (magazine)" rel="homepage" href="http://www.people.com/people?xid=teenpeople"><em>People</em> magazine</a> today galvanized Warren and Brandeis to enunciate a &#8220;right to privacy.&#8221; They produced their groundbreaking article not because of the threat of unwarranted government searches, or even the potential for telegraph operators to reveal confidential business information entrusted to them by customers, but rather because of the new potential for mass-market gossip.<a href="http://www.flickr.com/photos/9619972@N08/2781329487/"><img class="alignleft" title="&quot;Newspaper&quot; by Flickr user just.Luc, used under a Creative Commons license" src="http://farm4.static.flickr.com/3028/2781329487_ba20fd6005_m.jpg" alt="" width="240" height="160" /></a></p> <p>The earlier&#8211;and still existing, especially in the United Kingdom, which never adopted Warren and Brandeis&#8217; positions&#8211;right to confidentiality, on the other hand, focused on relationships: &#8220;Rather than protecting the information we hide away in secrecy,&#8221; <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495">write Richards and Solove</a>, &#8220;confidentiality protects the information we share with others based upon our expectations of trust and reliance in relationships&#8221; (p. 125).</p> <p>In short, if one intends to look at how what we call &#8220;privacy&#8221; today was perceived by Americans in the nineteenth century, one needs to begin by looking at confidentiality, not privacy as the cornerstone of such an investigation. The concern was not so much with what was secret, but rather what was shared via trust relationships. Basically, given the much smaller size and power of police agencies in the nineteenth century, most Americans were less concerned with law enforcement intrusion than with competitors and gossips. If they were concerned with government intrusion, it was in the context of protecting the home against invasion.</p> <p>The second concern is exactly what Warren and Brandeis picked up on, while the first has been dealt with in American law by a patchwork of remedies, from trade secrets to copyright to &#8220;unjust enrichment,&#8221; but never developed quite as fully as in English law once Warren and Brandeis sent American jurisprudence down the path of &#8220;privacy = protection from gossip.&#8221;</p> <p>Even postal mail, long considered sacrosanct from meddling by either governments or individuals, was primarily protected by postal regulations and morality. It was not until 1878 that the Supreme Court, in <em>Ex parte Jackson</em>, finally extended <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> protections from papers in a person’s home to papers in transit through the mails. That this happened in the late 1800s is no surprise; this was also the beginning of the modern administrative state and the modern business monopoly. New technologies had finally forced the law to take steps to catch up.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/stepping-stone-to-internet-privacy-the-telegraph/">Stepping stone to Internet privacy: the telegraph</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/02/the-telegraph-and-business-invasions-of-privacy/">The telegraph and business invasions of privacy</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b0352715-5f7a-4f89-800c-b9ae6421fe24" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The telegraph and business invasions of privacy" https://inpropriapersona.com/articles/the-telegraph-and-business-invasions-of-privacy/ Mon, 07 Feb 2011 18:30:54 +0000 3c8bf177ddaea6c2a8ca609be2d234ce <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/24331364@N06/3519928148"><img class=" " title="Western Union -- Happy Mother's Day - 1942" src="http://farm4.static.flickr.com/3655/3519928148_634387cf78_m.jpg" alt="Western Union -- Happy Mother's Day - 1942" width="240" height="175" /></a><figcaption class="wp-caption-text">Image by Beyond the Trail</figcaption></figure> </div> <p><a href="http://www.flickr.com/photos/garytrinity/3519928148/sizes/o/in/photostream/"></a>The <a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">applicability of the Fourth Amendment to telegraphic communications</a> in the late nineteenth century may have been disputed, but it was at least defensible. Many, though, began to see the rise of monopolistic telegraph operators as more of a threat than the government. Against this potential eavesdropper, the Bill of Rights provided no protection. As David Seipp notes, &#8220;Constitutional protections against <a class="zem_slink" title="Search and seizure" rel="wikipedia" href="http://en.wikipedia.org/wiki/Search_and_seizure">search and seizure</a> &#8230; were designed to protect the privacy of individuals from invasion by government, not business.&#8221;</p> <p>In the 1870s, in the face of increasing government pressure, the president of <a class="zem_slink" title="Western Union" rel="homepage" href="http://www.westernunion.com/">Western Union</a>, William Orton, strongly maintained the importance of protecting the confidentiality of telegraphs as foundational to his business, arguing that customers had &#8220;reposed in us the gravest confidence concerning both their official and their private affairs.&#8221;</p> <p>By the 1880s and 1890s, in the face of rising &#8220;robber barons&#8221; and business monopolies, business began to be seen by the public as more of a threat to privacy than the protector of privacy. Wall Street financier <a class="zem_slink" title="Jay Gould" rel="wikipedia" href="http://en.wikipedia.org/wiki/Jay_Gould">Jay Gould</a> united the entire telegraph system into one monopoly in 1881, and was widely believed to monitor telegraphic communications to increase his wealth and investments.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:History_of_jay_gould.jpg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/f/fc/History_of_jay_gould.jpg/300px-History_of_jay_gould.jpg" alt="" width="300" height="304" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Laws in the nineteenth century generally provided little or no protection from wiretapping and similar activities by private individuals, except through application of laws against trespass. Thus, third-parties tapping into Western Union lines could be prosecuted, but Western Union itself was limited only by its own rules and regulations from such monitoring.</p> <p>Western Union successfully defeated federal laws against government &#8220;intrusion&#8221; (regulations or the &#8220;postalization&#8221; of the telegraph) into their monopoly until the early twentieth century, when the telegraph began to be eclipsed by the telephone.</p> <p>At the state level, however, some protections against the disclosure of private messages by telegraph operators did exist, albeit in a patchwork form throughout the country. Even without specific laws, suits charging improper disclosure were successful at the state level, provided monetary loss could be demonstrated.</p> <p>By the end of the nineteenth century, a right to privacy focused mostly on the inviolability of the home had been extended, at least in legal discourse and the popular imagination, to extra-domicile communications. While the extension of the Fourth Amendment to electr(on)ic communications would have to wait until <a href="http://caselaw.lp.findlaw.com/data/constitution/amendment04/05.html"><em>Katz</em> and <em>Berger</em></a> in the mid-twentieth century, the stage had been set for change by the new technology of the telegraph.</p> <p><em>For more discussion of privacy in America and the law, see David Seipp, <a href="http://pirp.harvard.edu/pubs_pdf/seipp/seipp-p78-3.pdf">The Right to Privacy in American History,</a> pp. 77-95 (1977-78).</em></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/">Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/12/03/AR2010120303390.html?wprss=rss_technology">You: Cautionary lessons in history of information technology</a> (washingtonpost.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/stepping-stone-to-internet-privacy-the-telegraph/">Stepping stone to Internet privacy: the telegraph</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=4f6fe0d0-d7d3-41b6-b285-7a65b8ca2224" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)" https://inpropriapersona.com/articles/extending-the-fourth-amendment-beyond-the-home-ex-parte-jackson-1878/ Mon, 31 Jan 2011 18:00:52 +0000 98749b1a018e7d88110944bf17576fe7 <p>In 1878, <a class="zem_slink" title="Supreme court" href="http://en.wikipedia.org/wiki/Supreme_court" rel="wikipedia">the Supreme Court</a> held in <em><a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&amp;vol=96&amp;invol=727">Ex parte Jackson</a>:</em></p> <blockquote><p>Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.</p></blockquote> <p>This case, which dealt with government agents opening mail in search of banned lottery materials, hints at the future Court&#8217;s ruling on wiretaps in <em><a class="zem_slink" title="Katz v. United States" href="http://en.wikipedia.org/wiki/Katz_v._United_States" rel="wikipedia">Katz v. United States</a></em> that the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution" rel="wikipedia">Fourth Amendment</a> &#8220;<a href="http://supreme.justia.com/us/389/347/case.html">protects people, not places</a>.&#8221;</p> <p>Interestingly, although the 1878 ruling involved postal mail, it came shortly after a <a class="zem_slink" title="United States congressional committee" href="http://en.wikipedia.org/wiki/United_States_congressional_committee" rel="wikipedia">Congressional committee</a> forced (via threat of imprisonment) Western Union officials to turn over numerous telegraphs of private individuals in an effort to resolve a dispute over electoral votes. Telegraph companies had been maintaining for 25 years that the &#8220;sanctity of the mails&#8221; was paramount, and analogized telegraphic dispatches to postal mail.</p> <p>Congress passed a resolution in 1880 protecting telegraphic correspondence, but nonetheless allowing itself to have access via its subpoena power without acknowledging the potential Fourth Amendment issues. (<a class="zem_slink" title="Subpoena" href="http://en.wikipedia.org/wiki/Subpoena" rel="wikipedia">Subpoenas</a> do not require judicial approval at issuance, but can be quashed by a later judicial proceeding if they are over-broad or otherwise lack the &#8220;reasonableness&#8221; required by the Fourth Amendment.) If telegraphs were protected by the Fourth Amendment in the same way as postal letters, then Congressional resolutions or subpoenas would not be sufficient to overcome a judicial challenge, since Congress cannot simply exempt itself from constitutional provisions.</p> <p>Although not specifically dealing with telegraphs, the Supreme Court did act to check over-broad Congressional investigations in <em><a href="http://en.wikipedia.org/wiki/Kilbourn_v._Thompson">Kilbourn v. Thompson</a>, </em>holding that Congress does not &#8220;possess[] the general power of making inquiry into the private affairs of citizens.&#8221;</p> <p>These late nineteenth-century discussions presaged the sharp debates to come later on in the twentieth century, as the American people and the American courts grappled with the question of the status of electronic communications, from telephones to email.</p> <p><em>For more discussion of privacy in America and the law, see David Seipp, <a href="http://pirp.harvard.edu/pubs_pdf/seipp/seipp-p78-3.pdf">The Right to Privacy in American History,</a> pp. 47-59(1977-78).</em></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2011/01/stepping-stone-to-internet-privacy-the-telegraph/">Stepping stone to Internet privacy: the telegraph</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">Appeals Court Holds that Email Privacy Protected by Fourth Amendment</a> (eff.org)</li> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-31921_3-20025793-281.html?part=rss&amp;subj=PrivacyInc.">Search warrants and online data: Getting real</a> (news.cnet.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=7cba56f5-c213-4525-97f3-b8f6fb47df72" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Stepping stone to Internet privacy: the telegraph" https://inpropriapersona.com/articles/stepping-stone-to-internet-privacy-the-telegraph/ Tue, 25 Jan 2011 18:00:33 +0000 073a46aa835c683ae0ce81c0bae89461 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Phelps%27_Electro-motor_Printing_Telegraph.jpg"><img title="An illustration of Phelps' Electro-motor Print..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/6/61/Phelps%27_Electro-motor_Printing_Telegraph.jpg/300px-Phelps%27_Electro-motor_Printing_Telegraph.jpg" alt="An illustration of Phelps' Electro-motor Print..." width="300" height="270" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>There have been four pivotal technologies that have forced modern American law and society to re-examine its notions of privacy and confidentiality:</p> <ol> <li>a national postal system in the eighteenth century;</li> <li>the <a class="zem_slink" title="Telegraphy" href="http://en.wikipedia.org/wiki/Telegraphy" rel="wikipedia">telegraph</a> in the nineteenth century;</li> <li>telephony in the early-to-mid twentieth century;</li> <li>the Internet, including email, in the late twentieth and early twenty-first centuries.</li> </ol> <p>I&#8217;m currently investigating the telegraph further to see how it fits into this progression (not necessarily to be confused with &#8220;progress&#8221;). When introduced as a technology in the nineteenth century, American law was still focused on <a class="zem_slink" title="Property" href="http://en.wikipedia.org/wiki/Property" rel="wikipedia">property rights</a> and the home as the place of privacy and confidentiality, and as the space to be protected from unreasonable searches and seizures. The postal system had begun to destabilize this view as early as the late eighteenth century, but the telegraph even more forcefully brought these concerns into American law and culture. Societal and legal changes around the telegraph foreshadowed the later debates about wiretapping and communications privacy that would forcefully emerge with the telephone and that would continue with the Internet.</p> <p>In legal terms, the shift presaged by the telegraph highlights the slowly changing views of the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution" rel="wikipedia">Fourth Amendment</a> (the <a class="zem_slink" title="Search and seizure" href="http://en.wikipedia.org/wiki/Search_and_seizure" rel="wikipedia">prohibition against unreasonable searches and seizures</a>) from one that revolved around property interests in the home to a view that the Fourth Amendment instead <a href="http://supreme.justia.com/constitution/amendment-04/28-berger-and-katz-cases.html">protected people, not places</a>.</p> <p>In addition to technology, of course, various other factors also played a role in the shift from a firm conception of the Constitution as protecting primarily property interests in the nineteenth century to a view focused on an underlying conception of protecting people from invasions of privacy by the mid-twentieth century. The rise of the middle class, as well changing labor and familial relations, are two key examples, but there are surely more.</p> <p>But I think the four technologies I outlined above are four of the most key factors in this change. The telegraph is one of these keys, and its impact on communications and privacy law is under-appreciated, in my opinion.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/11/changing-technology-changing-expectations-of-privacy/">Changing technology, changing expectations of privacy</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">Appeals Court Holds that Email Privacy Protected by Fourth Amendment</a> (eff.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=0ad460c9-2fa7-4336-8445-10ba2791883b" alt="" /></div> "Defamation, SLAPP, and medicine: Doctor’s Data, Inc. v. Barrett et al" https://inpropriapersona.com/articles/defamation-slapp-and-medicine-doctors-data-inc-v-barrett-et-al/ Mon, 17 Jan 2011 18:45:13 +0000 82c55235a78b985c619ad44a73ba3cfe <p><a href="http://www.quackwatch.com/"></a><a href="http://www.flickr.com/photos/akuchling/50323704/in/photostream/"><img class="alignright" title="&quot;Metabograph, right panel&quot; by Flickr user A.M. Kuchling, used under a Creative Commons Attribution license." src="http://farm1.static.flickr.com/29/50323704_16d830bb39_m.jpg" alt="" width="240" height="180" /></a>Quackwatch tries to highlight medical practices that lack a basis in scientific or <a class="zem_slink" title="Evidence-based medicine" rel="wikipedia" href="http://en.wikipedia.org/wiki/Evidence-based_medicine">evidence-based medicine</a>. <a href="http://www.techdirt.com">Techdirt</a> gives one example of Dr. <a class="zem_slink" title="Stephen Barrett" rel="homepage" href="http://www.quackwatch.org">Stephen Barrett</a>&#8216;s approach:</p> <blockquote><p>Barrett has written a few times about a medical lab named Doctor&#8217;s Data, that he feels is helping certain medical practitioners defraud patients through misleading results. Here&#8217;s <a href="http://www.quackwatch.org/01QuackeryRelatedTopics/Tests/urine_toxic.html">one example of such a report</a>. You&#8217;ll notice that it&#8217;s pretty detailed in explaining why Barrett has problems with the use of these reports.<br /> &#8211; <a href="http://www.techdirt.com/articles/20100701/01441710039.shtml">Quackwatch Sued For Suggesting Medical Lab Quackery</a></p></blockquote> <p>This goal, as you might expect, sometimes gets Quackwatch in trouble. Last summer, Doctor&#8217;s Data <a href="http://d1.scribdassets.com/ScribdViewer.swf?document_id=33795856&amp;access_key=key-12m794dqfuhlswstjfju&amp;page=1&amp;viewMode=list">filed a lawsuit</a> against Quackwatch for &#8220;restraint of trade; trademark dilution; business libel; tortious interference with existing and potential business relationships; fraud or intentional misrepresentation; and violating federal and state laws against deceptive trade practices.&#8221; (<a href="http://dockets.justia.com/docket/illinois/ilndce/1:2010cv03795/244564/">Doctor&#8217;s Data, Inc. v. Barrett et al.)</a></p> <p>From my reading, the main complaint seems to be that Barrett has gone through the test report produced by Doctor&#8217;s Data, along with the context in which medical practitioner&#8217;s request testing, and found it wanting in medical utility. Even more <a class="zem_slink" title="Defamation" rel="wikipedia" href="http://en.wikipedia.org/wiki/Defamation">defaming</a>, according to the suit, is that he wrote that primarily &#8220;nonstandard practitioners&#8221; make use of Doctor&#8217;s Data.</p> <p>His description of the testing process suggests that practitioners first give patients heavy metals (&#8220;provocation&#8221;), then order a test for heavy metals, then tell them they need <a href="http://en.wikipedia.org/wiki/Chelation_therapy">chelation therapy</a> when the test results come back saying patients have elevated levels of heavy metals in their systems. His conclusion? &#8220;<a href="http://www.quackwatch.org/01QuackeryRelatedTopics/Tests/urine_toxic.html">Provoked testing is a scam.</a>&#8221; He goes on to review the advice endorsed by Doctor&#8217;s Data&#8217;s vice president&#8211;recommending chelation therapy&#8211;as &#8220;very, very, very, very wrong.&#8221;</p> <p><a href="http://www.quackwatch.org/14Legal/dd_suit.html">Doctor&#8217;s Data took umbrage with Dr. Barrett&#8217;s criticisms, and sued</a>. First, though, they sent a <a class="zem_slink" title="Cease and desist" rel="wikipedia" href="http://en.wikipedia.org/wiki/Cease_and_desist">cease and desist letter</a>, demanding a retraction, but failing to identify the specific statements at issue. After a further letter that also neglected to name specifics, Doctor&#8217;s Data <a href="http://dockets.justia.com/docket/illinois/ilndce/1:2010cv03795/244564/">filed suit in federal court in Illinois</a>.</p> <p>Without paying PACER to access the various filings, I can&#8217;t glean much more about the details and progress of the case. At first glance, it seems like a classic example of a potential <a href="http://en.wikipedia.org/wiki/SLAPP">SLAPP</a> lawsuit&#8211;that is, a suit designed specifically to <em>silence</em> critics, whatever the merits of the criticism. Illinois does have anti-SLAPP legislation, known as the <a href="http://www.citmedialaw.org/legal-guide/anti-slapp-law-illinois">Citizen Participation Act (CPA)</a> and, apparently, Barrett&#8217;s attorneys have indeed <a href="http://web.archive.org/web/20101217172209/http://www.examiner.com:80/special-education-in-mesa/anti-slapp-dismissal-motion-filed-doctor-s-data-inc-v-barrett">filed an anti-SLAPP motion</a>.</p> <p>It&#8217;s unclear to me whether such an action will be successful under the Illinois statute, since the CPA is focused primarily on protecting speech concerning government or public concern. That said, it seems to me, calling out possibly fraudulent medical activity falls on the side of discussing an issue of public concern.</p> <p>Of course, defamation is an actionable offense, provided the defamatory statements are not true (truth is an absolute defense) nor mere opinion. First Amendment protections, of course, are considerations, which is likely why Doctor&#8217;s Data focused on the business aspects of the case (benefits to Quackwatch as a business&#8211;although it appears to be a nonprofit&#8211;and harm to Doctor&#8217;s Data&#8217;s business). Barrett, then, would likely emphasize that he is acting in the public interest, as journalists do, and is not, for example, trying merely to damage Doctor&#8217;s Data&#8217;s business or to act as a competitor.</p> <p>I&#8217;ll be curious to see where this goes next. My prediction on the outcome? Likely favorable to the defendant&#8211;but that&#8217;s just my opinion.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://blogs.forbes.com/sciencebiz/2010/07/the-quackwatch-lawsuit-attacks-free-speech-and-science/">The Quackwatch Lawsuit Attacks Free Speech And Science</a> (blogs.forbes.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.sciencebasedmedicine.org/?p=5983">Doctor’s Data Sues Quackwatch</a> (sciencebasedmedicine.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=21106b99-5f6e-4cbf-9d27-a1693a660ee4" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Cassirer and the Enlightenment" https://inpropriapersona.com/articles/cassirer-and-the-enlightenment/ Sat, 11 Dec 2010 02:41:33 +0000 d2874abcf5551b15c1a89e8c395654bf <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/File:Cassirer.jpg"><img title="Ernst Cassirer" src="http://upload.wikimedia.org/wikipedia/commons/thumb/4/41/Cassirer.jpg/300px-Cassirer.jpg" alt="Ernst Cassirer" width="300" height="483" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/File:Cassirer.jpg">Wikipedia</a></dd> </dl> </div> </div> <p><a class="zem_slink" title="Ernst Cassirer" rel="wikipedia" href="http://en.wikipedia.org/wiki/Ernst_Cassirer">Cassirer</a>’s <a href="http://www.amazon.com/Philosophy-Enlightenment-Ernst-Cassirer/dp/0691019630">work on the Enlightenment</a> is quite unlike many of the other works of science studies I have worked on over the last couple of years. Most strikingly different, I think, is his focus on nearly-pure <a class="zem_slink" title="Intellectual history" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_history">intellectual history</a>. This focus, especially after reading texts like those of <a class="zem_slink" title="Bruno Latour" rel="wikipedia" href="http://en.wikipedia.org/wiki/Bruno_Latour">Bruno Latour</a>, appears remarkably devoid of social, political, or economic factors. Partly, of course, this is due to Cassirer writing in 1932, with the attendant stylistic and linguistic differences from works today, but much of the sense of being “old fashioned” comes from the lack of discussion of forces acting on his narrative from outside of the intellectual sphere. From our perspective today, some 75 years after Cassirer, his work seems to lack the historical context which so fascinates us today.</p> <p>Cassirer’s approach, though, brings forward a different kind of historical verity than can be found through an examination of cafe culture, or gender, or class conflict. His approach highlights a sense of the unity of the Enlightenment, the unifying focus on how we know things. Thus, Cassirer says in his introduction that he will discuss the Enlightenment “in the light of its unity of its conceptual origin and of its underlying principal rather than of the totality of its historical manifestations and results.” This kind of “high-level” historical unity can easily be concealed by more detailed studies of context, materiality, and so on, but it was the kind of unity of thought that self-consciously bound many in the Enlightenment together into a “<a class="zem_slink" title="Republic of Letters" rel="wikipedia" href="http://en.wikipedia.org/wiki/Republic_of_Letters">Republic of Letters</a>,” and its the “myth” of this unity helped shape our understandings of <a class="zem_slink" title="Age of Enlightenment" rel="wikipedia" href="http://en.wikipedia.org/wiki/Age_of_Enlightenment">Enlightenment thought</a> for centuries. Failing to engage with the Enlightenment as Cassirer did would be to do a disservice to a fundamental aspect of history, just as much as failing to go beyond his approach alone would also do history a disservice. In a sense, Cassirer approached the Enlightenment in the way those who lived it did, and while the result may have neglected other forces at work in the time period, his intellectual focus on “the universal method of reason” reflected a sense common to the <em>philosophes</em>, at the very least (see pages 7-9).</p> <p>But even if I can value Cassirer’s high-intellectual approach, and see its utility in approaching and understanding a certain spirit of the times, I think he imposes to great a unity of thought in the period. Not everyone during the Enlightenment&#8211;even the literate&#8211;were French <em>philosophes</em>. Where, for example, does the Scottish Enlightenment come into play?</p> <p>That said, Cassirer is not focused specifically on the thought of specific French philosophers, but rather, in some sense, on a kind of <em>zeitgeist</em> of the time. He writes, “The real philosophy of the Enlightenment is not the simply &#8230; what its leading thinkers &#8230; thought and taught [as] it consists less in certain individual doctrines than in the form and manner of intellectual activity in general” (see Cassirer&#8217;s introduction). His “unity” is thus a kind of idealized version of the epoch, not a recounting of its component parts.</p> <p>Compare this approach with that of <a href="https://inpropriapersona.com/2010/10/dorinda-outram-on-the-enlightenment/">Dorinda Outram</a> and Peter Gay. Otram never gives us a single, unified definition of what the Enlightenment means. She distinguished, for example, between different national Enlightenments, where the term came to identify distinctly different things. Gay, who Outram contrasts her on work with, operates much more in the tradition of Cassirer: for him, as for Cassirer, the great thinkers of the Enlightenment were primarily French philosophers: Voltaire, Diderot, Rousseau, for example. Gay too viewed the Enlightenment as a “unity,” and measures it in “terms of the lives of the great thinkers” (see Outram, p. 3).</p> <p>Cassirer focused on “rationality” as the defining unity of the Enlightenment. Outram, and other “new” historians, tend to emphasize the social and political contexts of Enlightenment ideas, and include global connections between Europe and the rest of the world—something that never emerges in Cassirer, who is distinctly Euro-centric in his approach and understanding. Even staying within France, historians like Jessica Riskin seek to “show that these sciences [of the Enlightenment] were embedded within the contemporary culture, rather than acting upon it from outside” (Riskin, p. 5). Cassirer approach, in contrast, tends to position the intellectual elites as somehow “outside” the culture upon which they exerted a profound influence.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:Abraham_Bosse_Salon_de_dames.jpg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/c/c6/Abraham_Bosse_Salon_de_dames.jpg/300px-Abraham_Bosse_Salon_de_dames.jpg" alt="" width="300" height="267" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>As another contrasting example, Outram points out that along with the new ideas of the Enlightenment came an changes in social integration and class distinctions. Recent historical research, breaking away from Cassirer’s approach, has highlighted major societal shifts in the access to ideas, perhaps most especially due to the growth and greater dissemination of print media. Additionally, new social institutions were constructed based on the interchange of these ideas, not just to show off wealth or rank distinct from intellectual pursuits. The growth of scientific societies, public lectures, cafes and even lending libraries illustrates this societal trend, which breaks down some of the separateness of intellectual ideal illustrated by Cassirer&#8217;s treatment of the Enlightenment. In short, Cassirer neglects the entirety of the public sphere that Outram considers critical to developing a more nuanced and complex understanding of the epoch.</p> <p>But Outram, despite her attempts to add complexity to previous scholarship of the Enlightenment&#8211;like that of Cassirer and Gay&#8211;nonetheless still gives her book a title in the singular: “The Enlightenment.” So, despite social context, political complexities, and so on, there is nonetheless something unifying about what occurred during this period of time or, at least, something useful about the unitarian view of Cassirer and Gay. Yes, the period was more complex that is indicated by reference merely to a few French intellectuals, but nonetheless, the expressions and ideas of these intellectuals are exactly what historians and intellectuals then and now drew on to form their own ideas. Cassirer captures this in a powerful and influential way.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/File:Salon_de_Madame_Geoffrin.jpg"><img title="Anciet Charles Gabriel Lemonnier (French, 1743..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/c/cb/Salon_de_Madame_Geoffrin.jpg/300px-Salon_de_Madame_Geoffrin.jpg" alt="Anciet Charles Gabriel Lemonnier (French, 1743..." width="300" height="197" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/File:Salon_de_Madame_Geoffrin.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>But returning to the limitations of Cassirer, one of the key aspects of the Enlightenment that he neglects is that of the connection&#8211;mentioned briefly above&#8211;between the intellectual and the public sphere. There is no room in Cassirer for <a href="https://inpropriapersona.com/2010/11/science-and-sociability-in-mary-terralls-the-man-who-flattened-the-earth-maupertuis-and-the-sciences-in-the-enlightenment/">Mary Terrall’s discussions</a> of “sociability,” for example. She consideres sociability to be one of the most fundamental aspects of the Enlightenment (see Terrall, p. 3), but Cassirer neglects it almost entirely, concerned as he is with the thoughts of the eighteenth century. Thus, there is no room in Cassirer for the growth of public lectures, or even for scientific academies—he does not share Terrall’s belief that men of science had to link sociability with “private reading and writing” (see Terrall, p. 4). Terrall thus links the private (or intellectual) with the public, and considers both critical to a full understanding of the Enlightenment.</p> <p>Many other important historical questions are left out if one relies strictly on Cassirer’s approach. Thus, Outram asks if the <a class="zem_slink" title="French Revolution" rel="wikipedia" href="http://en.wikipedia.org/wiki/French_Revolution">French Revolution</a> was a consequence of the Enlightenment? Or if the Enlightenment was a consequence of revolution? The answer is not clear in her work, but nonetheless one can see that revolutions—French, American, or colonial—were clearly associated with, if not caused by, Enlightenment ideas. Cassirer’s vision of the Enlightenment, though, is divorced from such political and social considerations.</p> <p>Despite devoting a chapter to the topic, Cassirer neglects religion. The focus on rationality and reason, which was identified by Cassirer, also led to the questioning of religious traditions, not just theological positions. Cassirer does bring this up in the realm of ideas, writing: “The lust for knowledge, the <em>libido sciendi, </em>which theological dogmatism had outlawed and branded as intellectual pride, is now called a necessary quality of the soul as such and restored to its original rights” (page 14). But the challenging of “theological dogmatism” did not mean the disappearance of religion, as it continued to be a major factor in society, philosophy, and what would become science. But though Cassirer delves into the religious or theological issues at the same high level as he does philosophical ones, he neglects&#8211;again, as he does in other aspects&#8211;the more practical ramifications of the Enlightenment’s challenge of religion, and religion’s influence back on eighteenth century ideas <em>and practices.</em></p> <p>As Cassirer makes abundantly clear, the Enlightenment focused on rationality and reason: “If we were to look for a general characterization of the age of the Enlightenment,” he writes, “the traditional answer would be that its fundamental feature is obviously a critical and skeptical attitude toward religion” (page 134). Religion, of course, had to adapt this new Enlightenment discourse. Terrall notes that&#8211;and Cassirer too discusses&#8211;Deism as one way out of the apparent contradiction between religion and rationality, with its total hostility to revelation as truth. Cassirer suggests, though, that Deism was checked, not by the resistance of priest or parishioners, but rather by “radical philosophical skepticism which repelled the attacks of deism and stalled its advance” (page 177). Maybe, but I suspect there were battles of power in the non-ideological realm that played roles as well, along with individual resistance by the masses. Terrall points out that another approach to integrating the ideas of the Enlightenment and religion, one less clearly discussed by Cassirer, was to reject the attempt to make Christianity “reasonable,” and return to a view of religion which emphasized faith, trust in revelation, and personal witness to religious experience (see Terrall on p. 122).</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:JuergenHabermas_crop2.jpg"><img title="Jürgen Habermas during a discussion in the Mun..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/c/c6/JuergenHabermas_crop2.jpg/300px-JuergenHabermas_crop2.jpg" alt="Jürgen Habermas during a discussion in the Mun..." width="300" height="185" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Beyond the (ideological) battles between religion and reason, the general notion of <em>power&#8211;</em>religious, revolutionary or otherwise, except perhaps in the sense of “intellectual power”&#8211;is lacking in Cassirer. Terrall notes this when she points out that ideas such as “natural law” and “reason” created new ways to define and legitimate power. And the new idea of “public opinion” (identified by Kant as requiring tight control to avoid disrupting order) and the “public sphere” (developed further by Habermas). New power relations partly resulted from intellectual ideas, but these ideas were not created, developed, and promulgated in a vacuum. Analyzing them as such leaves out too much and changes the fundamental nature of what the Enlightenment was.</p> <p>From my perspective, and for my interests, Cassirer leaves off entirely too much of the materiality and detail of the Enlightenment. I myself am simply not fascinated by the intellectual back-and-forth of the <em>philosophes </em>without the grounding context of their individual personal feuds, political wrangling, public spectacles, and technological innovations.</p> <p>I can understand, as I noted above, that understanding and engaging with the intellectualism of the Enlightenment at the level Cassirer approaches it, is important to understanding, at the very least, the historiography of the eighteenth century. His approach is fundamental to approaching and dealing with the Enlightenment as a modern historian&#8211;but for me, my true interests remain less idealistic than Cassirer’s. In short, his is an overly intellectual history of ideas, one that provides useful, but limited, insights into some aspects of the Enlightenment.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/10/dorinda-outram-on-the-enlightenment/">Dorinda Outram on the Enlightenment</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/11/science-and-sociability-in-mary-terralls-the-man-who-flattened-the-earth-maupertuis-and-the-sciences-in-the-enlightenment/">Science and Sociability in Mary Terrall&#8217;s The Man Who Flattened the Earth: Maupertuis and the Sciences in the Enlightenment</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20120120161201/http://www.politeia-station.net/2010/12/ideological-archeology-counter.html">Ideological Archeology: The Counter-Enlightenment (I)</a> (politeia-station.net)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=531fa7a2-ad5e-435f-8676-384889befbf6" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The 1971 Supreme Court on WikiLeaks" https://inpropriapersona.com/articles/the-1971-supreme-court-on-wikileaks/ Mon, 06 Dec 2010 17:02:58 +0000 ab335636c1454bc58f466716e1fb42bf <figure style="max-width: 237px" class="wp-caption alignright"><a href="https://commons.wikipedia.org/wiki/File:Wikileaks_logo.svg"><img title="Logo used by Wikileaks" src="http://upload.wikimedia.org/wikipedia/commons/thumb/e/e7/Wikileaks_logo.svg/237px-Wikileaks_logo.svg.png" alt="Logo used by Wikileaks" width="237" height="547" /></a><figcaption class="wp-caption-text">Image via <a href="https://commons.wikipedia.org/wiki/File:Wikileaks_logo.svg">Wikipedia</a></figcaption></figure> <p>I am sympathetic to arguments that <a class="zem_slink" title="Wikileaks" href="http://www.wikileaks.org/" rel="homepage">WikiLeaks</a> has published information detrimental to United States interests, and that the publication of various diplomatic cables has made the job of the Department of State more difficult. Additionally, I am concerned that WikiLeaks does not have the same vested interest in the <em>responsible </em>evaluation, redaction, and publication of sensitive data as a traditional media outlet like the <em><a class="zem_slink" title="New York Times" href="http://www.newyorktimes.com" rel="homepage">New York Times</a>. </em>Thus, for example, the <a href="http://www.bbc.co.uk/news/world-us-canada-11923766">recent release of &#8220;sensitive facilities&#8221;</a> seems to have limited benefit, but potentially increases risks for these (non-military, often non-governmental) locations.</p> <p>Despite this concern, I was struck by the applicability of the words of the <a class="zem_slink" title="Supreme Court of the United States" href="http://maps.google.com/maps?ll=38.8907083333,-77.0043444444&amp;spn=1.0,1.0&amp;q=38.8907083333,-77.0043444444 (Supreme%20Court%20of%20the%20United%20States)&amp;t=h" rel="geolocation">United States Supreme Court</a> to the publication of the so-called &#8220;<a class="zem_slink" title="Pentagon Papers" href="http://en.wikipedia.org/wiki/Pentagon_Papers" rel="wikipedia">Pentagon Papers</a>&#8221; in 1971.</p> <p>In that 1971 case, <a href="http://scholar.google.com/scholar_case?case=17571244799664973711">New York Times Co. v. United States, 403 US 713</a>, the Court ruled against an attempt by the Nixon Administration &#8220;to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled &#8216;History of U. S. Decision-Making Process on Viet Nam Policy.&#8221;</p> <blockquote><p>&#8220;<strong>Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.</strong>&#8221; Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The Government &#8220;thus carries a heavy burden of showing justification for the imposition of such a restraint.&#8221; Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971).</p></blockquote> <p>In his concurrence, Justice Black wrote:</p> <blockquote><p><strong>The Government&#8217;s power to censor the press was abolished so that the press would remain forever free to censure the Government.</strong> The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. &#8230; In other words, we are asked to hold that despite the <a class="zem_slink" title="First Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" rel="wikipedia">First Amendment</a>&#8216;s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of &#8220;national security.&#8221; &#8230; The word &#8220;security&#8221; is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. <strong>The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.</strong></p></blockquote> <p>Justice Douglas added:</p> <blockquote><p>It should be noted at the outset that the First Amendment provides that &#8220;Congress shall make no law . . . abridging the freedom of speech, or of the press.&#8221; That leaves, in my view, no room for governmental restraint on the press. &#8230; <strong>The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.</strong> It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of <a class="zem_slink" title="Freedom of speech" href="http://en.wikipedia.org/wiki/Freedom_of_speech" rel="wikipedia">Freedom of Expression</a>, c. V (1970); Z. Chafee, <a class="zem_slink" title="Freedom of speech in the United States" href="http://en.wikipedia.org/wiki/Freedom_of_speech_in_the_United_States" rel="wikipedia">Free Speech in the United States</a>, c. XIII (1941). &#8230; Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be &#8220;uninhibited, robust, and wide-open&#8221; debate. New York Times Co. v. Sullivan, 376 U. S. 254, 269-270.</p></blockquote> <p>Not every Justice agreed, but protecting the right to publish, despite government claims of national security, prevailed.</p> <p>While the circumstances of WikiLeaks&#8217; publications in 2010 are not the same as that involving the <em>New York Times </em>in 1971, I am nonetheless struck by the similarities. Beyond WikiLeaks status as a non-traditional news publisher, why is this any different from publishing the Pentagon Papers? Are the national security concerns greater? Is the risk to the United States higher? Is the damage higher? I&#8217;m still trying to decide.</p> "Review of “Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice”" https://inpropriapersona.com/articles/review-of-changing-fashions-in-advocacy-100-years-of-brief-writing-advice/ Sat, 04 Dec 2010 23:25:12 +0000 cf8864e5e07a449927b57b04796fe498 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/File:UWLawSchool.jpg"><img title="University of Washington School of Law" src="http://upload.wikimedia.org/wikipedia/en/thumb/8/8d/UWLawSchool.jpg/300px-UWLawSchool.jpg" alt="University of Washington School of Law" width="300" height="225" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/File:UWLawSchool.jpg">Wikipedia</a></dd> </dl> </div> </div> <p><a href="http://www.law.washington.edu/directory/Profile.aspx?ID=116">Helen A. Anderson</a> of the <a class="zem_slink" title="University of Washington School of Law" rel="homepage" href="http://www.law.washington.edu">University of Washington School of Law</a> brings us &#8220;Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice.&#8221; (The Journal of Appellate Practice and Process, Vol. 11, No. 1, Spring 2010.)</p> <p>Her historical essay looks at the twentieth century&#8217;s development of the modern legal brief, something she describes as &#8220;a relatively recent invention, not an ancient legal tradition.&#8221; The brief, she says, once was exactly the opposite in importance to what it is today. It has become the main form of appellate persuasion, with oral arguments focusing only on the highlights. Storytelling was once frowned upon in legal briefs, and &#8220;writers were told to avoid emotional or narrative appeals and present only the logical legal argument.&#8221; Later in the century, lawyers instead began to &#8220;craft their arguments like artists and novelists.&#8221;</p> <p>She touches on the issue of new technologies impacting the practice of law, noting that &#8220;[o]ne judge complained in 1908 that lawyers no longer took the time to carefully craft briefs with quill and ink, but instead dictated pages of rubbish to stenographers&#8221; (from <a class="zem_slink" title="Alfred Conkling Coxe, Sr." rel="wikipedia" href="http://en.wikipedia.org/wiki/Alfred_Conkling_Coxe%2C_Sr.">Alfred C. Coxe</a>&#8216;s 1908 article &#8220;Is Brief Making a Lost Art?&#8221;). Coxe goes on to write:</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 210px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:ACCSr.JPG"><img class=" " title="Portrait of US Federal Circuit Court Judge Alf..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/f/f3/ACCSr.JPG/300px-ACCSr.JPG" alt="Portrait of US Federal Circuit Court Judge Alf..." width="210" height="266" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <blockquote><p>The age of combinations, bureaucracies, telephones, and stenographers is at hand, but is still in its infancy. Some of us may yet live to behold a machine where the pleadings and proofs are inserted in a condensing hopper, passed through a solution of text-books and syllabi and from there to a drying chamber, to be deposited finally in a receiver attached to the clerk&#8217;s desk, in the form of a completed brief. It is to-day as difficult to find a hand-made brief as it is to find a hand-made shoe.</p></blockquote> <p>Interestingly, she compares the early twentieth-century perception of the judicial process &#8220;as one of scientific inquiry, and the lawyer&#8217;s role as an assistant in that project.&#8221; She quotes Ralph Ringwalt, who wrote in 1923 that the &#8220;proper personal attitude of legal reasoning on appeal is analogous to what is known as the scientific spirit in inquiry.&#8221;</p> <p>During the middle of the century, lawyers began to recognize the power of storytelling, and to see the process of brief-writing as more than a scientific endeavor. Today&#8217;s brief-writers are more inclined to see briefs as a combination of technical legal argument and compelling storytelling.</p> <p>Anderson&#8217;s article is both interesting and compelling, and provides much needed historical context to the practice of law that is often under-recognized within the practicing legal community. History is critical to the common law, but is less often practiced in relation to attorneys themselves.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.professorbainbridge.com/professorbainbridgecom/2010/11/why-practicing-lawyers-ought-to-hate-legal-academics.html">Why practicing lawyers ought to hate legal academics</a> (professorbainbridge.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=0650a388-d94a-4bd1-8107-aa99cfb42a7f" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Science and Sociability in Mary Terrall’s The Man Who Flattened the Earth: Maupertuis and the Sciences in the Enlightenment" https://inpropriapersona.com/articles/science-and-sociability-in-mary-terralls-the-man-who-flattened-the-earth-maupertuis-and-the-sciences-in-the-enlightenment/ Wed, 24 Nov 2010 18:30:53 +0000 f42653a618c16f08f8ff1290f797154a <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/File:PierreLouisMaupertuis.jpg"><img title="Pierre-Louis Maupertuis, also a native of Sain..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/2/20/PierreLouisMaupertuis.jpg/300px-PierreLouisMaupertuis.jpg" alt="Pierre-Louis Maupertuis, also a native of Sain..." width="300" height="388" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/File:PierreLouisMaupertuis.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>For the enlightened of the mid-eighteenth century, the most fundamental aspect of their enlightenment was &#8220;sociability,&#8221; according to Mary Terrall in <a href="http://www.amazon.com/Man-Who-Flattened-Earth-Enlightenment/dp/0226793613">The Man Who Flattened the Earth</a> (3). Sociability of the time consisted of public lectures, cafe discussions, salons, and scientific academies; the successful man of science had to link sociability with &#8220;private reading and writing&#8221; (4). <a class="zem_slink" title="Pierre Louis Maupertuis" rel="wikipedia" href="http://en.wikipedia.org/wiki/Pierre_Louis_Maupertuis">Maupertuis</a>, by Terrall’s account a master manipulator of his own image, utilized these &#8220;interlocking practices&#8221; of public and private sociability to build his persona and his reputation (4). Today, such self-conscious image building is often disparaged by &#8220;real scientists,&#8221; who consider such activities to be reserved for writers of so-called &#8220;popular science,&#8221; but at the time the connections between men of science and men of letters was less disputed and arguably more normal.</p> <p>Maupertuis positioned himself as both a &#8220;man of science&#8221; and a &#8220;man of letters.&#8221; During <a class="zem_slink" title="Age of Enlightenment" rel="wikipedia" href="http://en.wikipedia.org/wiki/Age_of_Enlightenment">the Enlightenment</a>, men of science began to serve practical (that is, state) ends, and not just philosophical ones. But what did it mean to be a man of science in the time of Maupertuis? While such a man did seek practical ends with their work, he &#8220;was not yet a bureaucrat, nor a professional, as his nineteenth-century descendants would be, nor even an expert in the modern sense of the word&#8221; (166). Still, the state—through instututions like the <em>Académie</em>, had increasingly found utility in such men. Still, although men like Maupertuis &#8220;made their work useful to the state, and to absolutist rulers, &#8230; they also pursued knowledge in the service of the more idealized goals of human progress, rationality, and critical engagement.&#8221; (165). These idealized goals connected the men of science to the world of letters or philosophy, as Maupertuis most effectively demonstrates.</p> <p>Maupertuis was, in Terrall’s account, the quintessential man of science of his period, and his geodetic expedition to <a class="zem_slink" title="Lapland (Finland)" rel="geolocation" href="http://maps.google.com/maps?ll=67.0,26.0&amp;spn=1.0,1.0&amp;q=67.0,26.0 (Lapland%20%28Finland%29)&amp;t=h">Lapland</a> became the mechanism by which he combined his social connections and publications to create and enhance this image. He thus portrayed himself as not just a man of science, but also as a man of letters: &#8220;Maupertuis himself was one of a small number of members of the science academy who was also elected to the elite literary academy, the <em><a class="zem_slink" title="Académie française" rel="wikipedia" href="http://en.wikipedia.org/wiki/Acad%C3%A9mie_fran%C3%A7aise">Académie française</a></em>, which in turn was closely linked to the salons of powerful aristocratic hostesses.&#8221;</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/71387798@N00/870543298"><img title="Académie Française" src="http://farm2.static.flickr.com/1256/870543298_ec8b2bd0b8_m.jpg" alt="Académie Française" width="240" height="160" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/71387798@N00/870543298">heedoo</a> via Flickr</dd> </dl> </div> </div> <p>Maupertuis was not the only man of science of the time to also venture into the realm of letters, and Terrall points out that the &#8220;successful man of science &#8230; was also a man of letters (369). It seems that the institutionalized world of the <em>Académie</em> was not so very separate from the social world of talk and discussions. Dialog and other social interactions found their way into the more private world of print, while letters and published books were read and discussed in social situations. Terrall <a href="http://www.amazon.com/Man-Who-Flattened-Earth-Enlightenment/dp/0226793613">writes</a>:</p> <blockquote><p>Traces of dialogue and exchange abound in printed works, in footnotes, prefaces, dialogues, and critical reviews; this literary angle was essential to the connection between science and sociability. Reading might seem a solitary and unsociable activity, but discussion and debate about books dominated many social gatherings and epistolary exchanges. To be sociable meant, among other things, to converse and correspond about books, their authors, their attackers, their supporters, and any attendant scandal. (7)</p></blockquote> <p>Maupertuis marshaled this connection between the printed word and the social world, making his way through the <em>salons</em> and cafés while writing numerous works that &#8220;range across an encyclopedic variety of topics, belying anachronistic notions of specialization or expertise&#8221; (6). &#8220;Reputation,&#8221; writes Terrall, &#8220;was crucially important in this world of gossip, performance, and reading&#8221; (7). Maupertuis masterfully developed his reputation as he &#8220;systematically crafted his public identify by building relations with a variety of constituencies and patrons, and by writing for several overlapping audiences&#8221; (8). <a href="http://muse.jhu.edu/login?uri=/journals/eighteenth-century_studies/v039/39.1vila.html">According to Anne Vila</a>, Maupertuis wrote frequently, and did so in a manner designed to keep himself in the public eye (118). He sought to balance his appearance in print before the reading public of the time with higher-level connections &#8220;with top mathematicians like Johann Bernouilli, powerful French ministers such as Cardinal Fleury, leading intellectuals like Voltaire, <a class="zem_slink" title="Émilie du Châtelet" rel="wikipedia" href="http://en.wikipedia.org/wiki/%C3%89milie_du_Ch%C3%A2telet">Emilie du Châtelet</a>, and Denis Diderot, and eventually, Frederick the Great of Prussia, who invited Maupertuis to head the Berlin Academy of Sciences and Belles-Lettres in 1746&#8243; (<a href="http://muse.jhu.edu/login?uri=/journals/eighteenth-century_studies/v039/39.1vila.html">Vila 118</a>). It was through his writings, especially his various accounts of the Lapland expedition, to portray himself as &#8220;adventurer, wit, and philosopher, equally comfortable in salon and academy&#8221;(Terrall 8-9).</p> <p>Maupertuis’ personality appeared well-fitted for taking advantage of his voyage to Lapland. He appealed effectively to the reading public with his persona as an &#8220;<a href="http://www.springerlink.com/content/h7023222x5884l16/">eccentric yet important savant</a>,&#8221; according to Andrew Simoson. As Terrall points out, Maupertuis &#8220;had a reputation as a libertine man-about-town, equally happy to consort with duchesses and their maids,&#8221; and he built on this image for his literary persona. The scientific data brought back from Lapland was important, and the trip helped Maupertuis within the <em>Académie</em>, but his publications for the literary world at large helped to establish him as more than an academic or servant of the crown (367-69).</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:Maupertuis_map.jpg"><img title="Maupertuis map" src="http://upload.wikimedia.org/wikipedia/commons/thumb/a/ac/Maupertuis_map.jpg/300px-Maupertuis_map.jpg" alt="Maupertuis map" width="300" height="488" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>In fact, it was his literary productions that helped gain Maupertuis the fame he sought, more even perhaps than that available through the state (367). According to Terrall, this is in many ways unsurprising, as the &#8220;boundaries separating the official institutions from the less differentiated public were never impermeable; indeed, the learned pursuits of savants gained a measure of legitimacy by appealing to this readership&#8221; (368). This ties in nicely with <a href="https://inpropriapersona.com/2010/10/dorinda-outram-on-the-enlightenment/">Dorinda Outram’s discussion</a> of the marked increase in literacy rates during the Enlightenment, with a concurrent increase in social integration. Maupertuis took advantage of these dramatic shifts in the production and accessibility of ideas, especially via the new world of printed literature. He tied this into the new social institutions based on the exchange of ideas (the salon and the coffee houses), but did so without ignoring existing institutions that did mark and display social and political rank (like the <em>Académie</em>). The public sphere&#8211;to tie into <a href="http://www.amazon.com/Structural-Transformation-Public-Sphere-Contemporary/dp/0262581086/">Habermas’s discussions</a>&#8211;developed and expanded in Maupertuis lifetime, and he effectively took advantage of this expanding social sphere, including new readers of his literary science.</p> <p>But who was this new readership? Outside of state and official institutions, who granted Maupertuis his fame and reputation? Who was the reading public he so carefully developed and targeted?</p> <blockquote><p>The relation between writer and public developed in the interstices of the many overlapping hierarchies of the old regime; hence, the fluidity of reputation derived from published works, and the many kinds of strategies that might lead to visibility and fame. All sorts of writers—journalists, novelists, playwrights, philosophers, chemists, mathematicians, travelers&#8211;referred to &#8220;the public&#8221; as the consumer and beneficiary of their works.” (367)</p></blockquote> <p>Maupertuis was hardly alone in seeking public fame. He joined others&#8211;novelists, playwrights, and other scientists&#8211;in this effort to appeal to the growing power of a public audience, an effort only made possible by the spread of literacy and the growth of printing technologies.</p> <p>But if Maupertuis was targeting the public as part of his literary efforts to establish himself, what kind of science was he presenting? According to Terrall, &#8220;[i]t was not the entrepreneurial science of the instrument makers and public lecturers, flourishing in the shops and cafés of London and Paris in the same period.&#8221; Instead, it seems, Maupertuis avoided a kind of &#8220;vulgarizing&#8221; his science, instead &#8220;retail[ing] an elite science and philosophy to a literary public&#8221; (369).</p> <p>Presented with a scientist today in the model of Maupertuis, we would, I think, be likely to dismiss him as a &#8220;mere popularizer&#8221;of science, and see his literary and pubic ambitions as tainting his scientific achievements. But if Terrall is right, and Maupertuis sold &#8220;elite science&#8221; to the public, then it is, I think, unfair to denigrate in any sense the &#8220;scientificness&#8221; of his achievements on the basis of his literary persona. In fact, perhaps Maupertuis unification of the world of science and of letters is one that modern-day scientists could learn from. Perhaps by sharing and explaining &#8220;elite science to a literary public,&#8221; we can move beyond the paralysis of doubt that many feel when faced by scientific experts today. If Maupertuis were explaining global climate change, would we skeptics still hold such a sway on the public? Perhaps a bit more of Maupertuis’ sociability would be of benefit to today’s scientists.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/10/dorinda-outram-on-the-enlightenment/">Dorinda Outram on the Enlightenment</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://scienceblogs.com/bioephemera/2010/11/the_lost_women_science_popular.php">The &#8220;Lost Women&#8221;: science popularizers and communicators of the 19th century [bioephemera]</a> (scienceblogs.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=8e1f29ae-0150-46aa-896b-72ec584c4b2a" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Five useful blogging tools" https://inpropriapersona.com/articles/five-useful-blogging-tools/ Mon, 22 Nov 2010 18:30:45 +0000 0b9995d3d45354e774ebaf0932d45d90 <p>Occasionally I like to take a break from my historical focus on law and technology, and instead take a look around at the contemporary blogging landscape. In that spirit, here&#8217;s a compendium of five of my current favorite cross-platform blogging tools and enhancements:</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 122px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/lijit-networks"><img title="Image representing Lijit Networks as depicted ..." src="http://www.crunchbase.com/assets/images/resized/0009/3688/93688v1-max-450x450.jpg" alt="Image representing Lijit Networks as depicted ..." width="112" height="81" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <h3>1. <a href="http://www.lijit.com">Lijit</a></h3> <p>Quickly leverage custom Google searches for your site, along with enhanced results displays and search tracking information to help see what your visitors want. Allows for searching not just your blogs content, but also other data you generate on the Internet (your Twitter feed, Delicious bookmarks, and so on) Available for multiple blog platforms.</p> <blockquote><p>Lijit&#8217;s technology platform provides valuable information about reader behavior and intent. Use our site search and content discovery tools to build your community, expand your brand, and make more money.</p></blockquote> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 216px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/zemanta"><img title="Image representing Zemanta as depicted in Crun..." src="http://www.crunchbase.com/assets/images/resized/0001/6433/16433v1-max-450x450.png" alt="Image representing Zemanta as depicted in Crun..." width="206" height="73" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <h3>2. <a href="http://www.zemanta.com">Zemanta</a></h3> <p>Easily add related images and links to your blog postings. Available for multiple blog platforms, either as a plugin for your blogging software or for your browser. Zemanta&#8217;s site says that:</p> <blockquote><p>Zemanta is a tool that looks over your shoulder while you blog and gives you tips and advice, suggests related content and pictures and makes sure your posts get promoted as they deserve to be. We at Zemanta are thinking hard to help make blogging easier for you. We&#8217;re engineering better creative tools to help you get the most out of your blogging time.</p></blockquote> <p>&nbsp;</p> <h3>3. <a href="http://www.linkwithin.com/">LinkWithin</a></h3> <p>Add thumbnail images and links to related material within your site, all automatically. Works across many different varities of blogging software.</p> <blockquote><p>LinkWithin is a blog widget that appears under each post, linking to related stories from your blog archive. We retrieve and index all stories from your blog archive, not just recent stories, making them accessible to new or casual readers of your blog who would not otherwise encounter them.</p></blockquote> <p>&nbsp;</p> <h3>4. <a href="http://www.outbrain.com/">Outbrain</a></h3> <p>Outbrain suggests related posts both on your site and off, and does the same for other bloggers. As a result, you benefit your visitors by showing related material from across the Web, and gain new visitors from other sites who see your posts on other blogs. It works via a simple cut and paste of Javascript, so it works on many different kinds of blog.</p> <blockquote><p>Our content syndication program, Outloud, exposes your most valuable content to the most qualified audience across thousands of sites. Site owners get to offer their readers great recommendations, readers get to discover interesting new articles, and Outloud customers get to grow their audience.</p></blockquote> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 115px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/80081080@N00/3091047566"><img class=" " title="Disqus T-Shirt Found in BenSpark's Big Box of ..." src="http://farm4.static.flickr.com/3119/3091047566_30f9c1a23a_m.jpg" alt="Disqus T-Shirt Found in BenSpark's Big Box of ..." width="115" height="144" /></a><figcaption class="wp-caption-text">Image by BenSpark via Flickr</figcaption></figure> </div> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/intensedebate"><img title="Image representing IntenseDebate as depicted i..." src="http://www.crunchbase.com/assets/images/resized/0000/4126/4126v3-max-450x450.png" alt="Image representing IntenseDebate as depicted i..." width="150" height="51" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <h3>5. <a href="http://intensedebate.com/">IntenseDebate</a>, <a href="http://disqus.com/">Disqus</a>, or <a href="http://aboutecho.com/">Echo</a></h3> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 86px" class="wp-caption alignleft"><a href="http://www.flickr.com/photos/7325451@N03/3904292960"><img title="js-kit-echo" src="http://farm3.static.flickr.com/2484/3904292960_743fbccb8e_m.jpg" alt="js-kit-echo" width="86" height="52" /></a><figcaption class="wp-caption-text">Image by evo_terra via Flickr</figcaption></figure> </div> <p>All three of these tools do related things: shift your comments to the cloud, with a corresponding increasing in social networking potential, extra features, and general utility. There may be nothing really wrong with your built-in commenting system, but hosting your comments elsewhere can give your visitors a much more sophisticated commenting experience. All of them have plugins for a variety of blogging platforms.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=14d5ebc2-f738-4826-8eac-7e61b49c2d22" alt="" /></div> "Thinking about theories of historiography" https://inpropriapersona.com/articles/thinking-about-theories-of-historiography/ Thu, 18 Nov 2010 23:10:18 +0000 8b338e448c81bb11dd406ccf9cf6de41 <p><a href="http://www.flickr.com/photos/adobemac/2895835834/in/photostream/"><img class="alignright" title="&quot;The Structure of Scientific Revolutions&quot; by Flickr user L. E. MacDonald, used under a Creative Commons Attribution-ShareAlike license " src="http://farm4.static.flickr.com/3028/2895835834_ed3930a823_m.jpg" alt="" width="240" height="183" /></a>Recently, I&#8217;ve been struck  by the sense that what seems to drive history as a profession is not specifically the investigation of new archives, new materials, new places, or new times, but rather simply the larger desire to always pursue what is new <em>qua</em> new. Attracting attention in the field seems to come not from revealing new aspects of the past, but from new <em>methods</em> investigation or explanation.</p> <p>Put in old-fashioned science studies terms (i.e., <a href="http://plato.stanford.edu/entries/thomas-kuhn/">Thomas Kuhn</a>), cutting-edge history is obsessed with forever escaping the bane of &#8220;<a class="zem_slink" title="Normal science" rel="wikipedia" href="http://en.wikipedia.org/wiki/Normal_science">normal science</a>&#8220;&#8211;that is, of applying useful and existing theoretical frameworks to look at the past&#8211;and instead forever seeks to a <a href="http://en.wikipedia.org/wiki/Paradigm_shift">Kuhnian &#8220;paradigm shift.&#8221;</a> From <a class="zem_slink" title="Marxist historiography" rel="wikipedia" href="http://en.wikipedia.org/wiki/Marxist_historiography">Marxist history</a> to <a class="zem_slink" title="Social history" rel="wikipedia" href="http://en.wikipedia.org/wiki/Social_history">social history</a> to the &#8220;cultural turn,&#8221; modernist to structuralist to postmodernist, there is a fascination with the <em>new.</em></p> <p>Interestingly, though, this is a &#8220;newness&#8221; that is grounded in the earlier approaches and reacts directly to them. Thus, &#8220;women&#8217;s history&#8221; rejected the dominant vision of traditional (and male-dominated) history, then became to &#8220;<a class="zem_slink" title="Gender history" rel="wikipedia" href="http://en.wikipedia.org/wiki/Gender_history">gender history</a>,&#8221; which then led to a further reaction: &#8220;the history of masculinity&#8221; (<a href="http://www.historycooperative.org/journals/jah/92.1/wickberg.html">Wickberg</a>). Why? Because, it seems to me, the previous approaches became ho-hum &#8220;normal history,&#8221; and historians wanted to do something <em>new</em>: &#8220;The fields of women&#8217;s history, <a class="zem_slink" title="African-American history" rel="wikipedia" href="http://en.wikipedia.org/wiki/African-American_history">African-American history</a>, and <a class="zem_slink" title="LGBT history" rel="wikipedia" href="http://en.wikipedia.org/wiki/LGBT_history">gay history</a> have not disappeared. Instead they have become establishment, rather than oppositional, fields, arenas in which ‘normal history’ is practiced&#8221; (<a href="http://www.historycooperative.org/journals/jah/92.1/wickberg.html">Wickberg</a>).</p> <p>This is the framework through which I see (to mix metaphors) <a href="http://en.wikipedia.org/wiki/Geoff_Eley">Geoff Ely</a>’s <a href="http://www.amazon.com/gp/product/0472069047?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0472069047">A Crooked Line: From Cultural History to the History of Society</a> (and the critiques of it). Ely, in a sense, is tired of this hunt for the forever new, and proposes a kind of detente, which, essentially, draws a line in historiography and says, &#8220;Here we are&#8211;everything up to this point is what we should stick to, and get back to doing stuff.&#8221; He doesn&#8217;t seek to reject the &#8220;cultural turn&#8221; or Marxist history or anything else, but simply to focus back on &#8220;normal history.&#8221;</p> <p>I am in many respects deeply sympathetic to this (much simplified) version of <a class="zem_slink" title="Geoff Eley" rel="wikipedia" href="http://en.wikipedia.org/wiki/Geoff_Eley">Geoff Eley</a>’s position in <a href="http://www.amazon.com/gp/product/0472069047?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0472069047">A Crooked Line</a>. I view theoretical approaches as useful tools, helpful when they are useful, and distracting when they are not. But at the same time, new theoretical approaches can reveal new truths about our past (and present and future). A &#8220;history of whiteness,&#8221; while in some sense an attempt to simply do something new in reaction to what has become &#8220;establishment history,&#8221; nonetheless also wrings something new out of our past that previous approaches might have missed. The past is a multilayered thing. Every shift in theoretical framework, whatever its motivation, peels back another layer. New interrogations of old things is no different from new interrogations of new things.</p> <p>The fight about theory, its utility, reactions against it, fights about which is better, etc., etc., says more to me about the state of historians than it does about history at all. Theory, and theoretical discourse, is about the people who practice history, not about those we study. We fear the impression of disarray that theoretical arguments can convey to the world at large&#8211;if we cannot even agree about how to do history, how can we expect anyone to trust what we say? But, realistically, these arguments are no more specific to history (or other humanities or social sciences) than they are to any other discipline; despite this, our fears of distrust by non-historians are no less realistic. We envy the high status of science in our society, but climate scientists and vaccine researchers have all felt the sting of distrust when their internal theoretical dissensions become visible to outsiders. We should not fear theory, but we should be wary of it.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/11/considering-comparative-approaches-in-legal-histories/">Considering comparative approaches in legal histories</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://booktwo.org/notebook/wikipedia-historiography/">On Wikipedia, Cultural Patrimony, and Historiography | booktwo.org</a> (booktwo.org)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20101214154734/http://www.simoncollister.com/simonsays/2010/09/history-historiography-and-wikipedia.html">History, historiography and Wikipedia</a> (simoncollister.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=a2197bd6-0100-4366-81ee-62c6840cef99" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "A quick history of the changing lengths of copyright protection" https://inpropriapersona.com/articles/a-quick-history-of-the-changing-lengths-of-copyright-protection/ Wed, 17 Nov 2010 03:30:57 +0000 6ac44ee2f66087185f5185c15c5b38d5 <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/File:Copyright_term.svg"><img title="Vectorization of Tom Bell's graph, which shows..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/2/2f/Copyright_term.svg/300px-Copyright_term.svg.png" alt="Vectorization of Tom Bell's graph, which shows..." width="300" height="186" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/File:Copyright_term.svg">Wikipedia</a></dd> </dl> </div> </div> <p>Since its codification in Britain in 1710, the length of copyright protection has continued to be extended, from an initial 14 years to today&#8217;s 70-120 or more years.</p> <p><strong>Before 1790</strong></p> <p>In Europe in the early fifteenth and sixteenth centuries, as printing began to spread, copyright only existed as a monopoly granted by royalty to specific printers to cover specific works. It was not a general rule of law that covered all written work, much less all printed texts. In England in the seventeenth century, the Stationer&#8217;s Company&#8211;a private organization, albeit one with government recognition&#8211;gained the absolute right to manage and grant the right to copy printed texts. The first recognizably modern version of copyright in England, and the one to which modern American copyright can trace its roots back, was the <a class="zem_slink" title="Statute of Anne" rel="wikipedia" href="http://en.wikipedia.org/wiki/Statute_of_Anne">Statute of Anne</a>, passed by the British Parliament in 1710.</p> <p class="sidebox">In <a class="zem_slink" title="Early modern France" rel="wikipedia" href="http://en.wikipedia.org/wiki/Early_modern_France">early modern France</a>, royal decrees before the eighteenth century established the duration of copyright to last in perpetuity, at least until rights were sold to a publisher (which would then limit the duration). Remnants of this focus on <em>authors</em> can still be seen in the sense of the &#8220;droit d&#8217;autor&#8221; and artistic &#8220;<a href="http://en.wikipedia.org/wiki/Moral_rights_(copyright_law)">moral rights</a>.&#8221; Post-Revolution, rights were limited to the lifetime of an author plus 5-10 years. The notion of literature as public property at heart, but granted to people for a length of time, was entrenched in the system.</p> <p>As of 1710, the Act granted monopoly rights to publishers for the period of 14 years, for the express purpose of encouraging &#8220;learned men to compose and write useful books.&#8221; This Act effectively created the legal category of the &#8220;public domain,&#8221; since once the 14 years expired, texts could be copied by anyone and belonged to no one (or to the public at large). The Lords confirmed the limited duration of copyright in <a href="http://en.wikipedia.org/wiki/Donaldson_v_Beckett">Donaldson v. Beckett</a> in 1774, a decision inherited in the United States as part of our common law (even though the Statute of Anne itself did not apply to the colonies).</p> <p><strong>1790: 28 years</strong></p> <p>In 1790 in the United States, the first <a class="zem_slink" title="Copyright Act of 1790" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright_Act_of_1790">Copyright Act of 1790</a>&#8211;closely modeled on the Statute of Anne&#8211;created a copyright term of 14 years from date of recording, along with the potential for renewal by surviving authors for another 14 years. Total protection, then, consisted of a maximum of 28 years.</p> <p><strong>1831: 42 years</strong></p> <p>In 1831, a revision to the Act extended the initial potential copyright period to 28 years, with the potential to extend it for another 14. The maximum thus became 42 years.</p> <p><strong>1909: 56 years</strong></p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 210px" class="wp-caption alignright"><a href="http://en.wikipedia.org/wiki/File:Newspaper_advert_copyright_patent_and_trade_mark.jpg"><img class=" " title="Newspaper advert: " src="http://upload.wikimedia.org/wikipedia/en/thumb/a/a1/Newspaper_advert_copyright_patent_and_trade_mark.jpg/300px-Newspaper_advert_copyright_patent_and_trade_mark.jpg" alt="Newspaper advert: " width="210" height="263" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>In 1909, Congress reformed copyright again, changing the duration to be an initial 28 years, followed by a possible extension of another 28. Total potential protection, then, was now 56 years.</p> <p><strong>1976: life + 50 or 75 years</strong></p> <p>The 1976 revision was, arguably, the most radical change to the law in 200 years. Copyright was changed to be the lifetime of an author plus 50 years, with <a class="zem_slink" title="Work for hire" rel="wikipedia" href="http://en.wikipedia.org/wiki/Work_for_hire">works for hire</a> (those that were commissioned or were produced at the behest of a corporation) protected for a total of 75 years. Fair use was codified specifically in statutory law at this time too, although the specifics of application were left to the courts. Much of the goal of this Act was to bring the United States in line with the rest of the world.</p> <p><strong>1998: life + 70 or 120/95 years</strong></p> <p>In 1998, the <a class="zem_slink" title="Copyright Term Extension Act" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act">Copyright Term Extension Act</a> extended the length copyright again, to the life of the author plus 70 years, or, when considering corporate &#8220;authors,&#8221; 120 years after creation or 95 years after publication, whichever is earlier. Additionally, this Act also covered works created in 1923 or later, applying the new durations to those works.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.umuc.edu/library/copy.shtml">Copyright and Fair Use &#8211; Information &amp; Library Services</a> (umuc.edu)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/02/you-do-not-get-an-a-for-effort-with-copyright/">You do not get an “A for effort” with copyright</a></li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=4fcc9922-f31c-4340-bbb2-39d4d3e83b9f" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Considering comparative approaches in legal histories" https://inpropriapersona.com/articles/considering-comparative-approaches-in-legal-histories/ Fri, 12 Nov 2010 18:30:45 +0000 9f0d88c9dde6657e53e86efcab4861e5 <p><a href="http://www.flickr.com/photos/melanieandjohn/329455258/in/photostream/"><img class="alignright" title="&quot;The Four Law Courts&quot; by Flickr users John &amp; Mel Kots, used under a Creative Commons Attribution-NonCommercial license. " src="http://farm1.static.flickr.com/155/329455258_d071bba5b9_m.jpg" alt="" width="240" height="199" /></a>I have <a href="https://inpropriapersona.com/2010/11/going-beyond-national-legal-histories/">proposed</a>, perhaps overly uncritically, comparative approaches between legal and societal understandings of privacy in the face of new technologies in the Unites States and, tentatively, the United Kingdom and France (or a similar civil law country). <a href="http://www.indiana.edu/~amst/faculty/seigel.shtml">Micol Siegel</a>&#8216;s work suggests that I should, at the very least, consider my approach critically. In &#8220;<a href="http://rhr.dukejournals.org/cgi/content/citation/2005/91/62">Beyond Compare: Comparative Method after the Transnational Turn</a>,&#8221; she argues that such comparative approach can, essentially, re-inscribe colonial, racial, and national narratives. Comparisons can end up hiding more than they reveal, effectively &#8220;produc[ing] the very notions, subjects, and experiences of national difference that in turn attract further comparative study&#8221; (63). However, some kind of comparative approach is still useful: &#8220;The nation, like the self, emerges in relation to others&#8221; (64).</p> <p>One key point of Siegel is that comparative histories tend to be &#8220;international&#8221; and not &#8220;transnational,&#8221; and that this is a core problem. Instead of escaping the &#8220;boundaries of nationalist historiography&#8221; (to quote Siegel quoting <a href="http://iantyrrell.wordpress.com/">Ian Tyrrell</a>, 65), traditional comparative approaches posit two (or more) distinct units (nations) that the historian then contrasts. This tends to ignore themes, narratives, concepts, etc. which act &#8220;unconfined by national borders&#8221; (65). Such studies can &#8220;shape or even create its own data&#8221; (65).</p> <p>Siegel&#8217;s points are quite valid, I think, especially for certain kinds of history, especially histories that target people or groups who cross artificial national boundaries (immigrants, for example). I am struggling, though, to integrate her critique into my work, which does not quite imagine national distinctions, but rather exists <em>because of</em> these national distinctions. However artificial it may be, law is bound by national boundaries, and investigating changes in law necessitates a recognition of nations.</p> <p>More fruitful for me, though, is to consider how ideas, concepts, and notions within the law may escape, cross, or transcend the legal boundaries into which they are inscribed. Thus, if I am investigating a concept like the &#8220;expectation of privacy,&#8221; I should consider the transnational character of this sense, and not simple say that, for example, the French have a different sense of it without examining what that means and what the cross-national connections may be. However, I do believe that comparing and contrasting the French and American legal structures is valid and fruitful&#8211;these boundaries and domains exist independent of my analysis. I am not creating them (even if, as I said, they may be artificial). But even as I do so, I should be careful not to attribute the differences strictly to some kind of national character, or to assume they the grew that way independent of influences from beyond the nation-state. But doing that, I think, is simply doing effective history; failing to take into account supra-national influences does a disservice to the history, quite apart from Siegel&#8217;s critique.</p> <p>Siegel proposes that comparative methods considered as &#8220;subjects&#8221; or historical study instead of &#8220;methods.&#8221; I think perhaps this proposal is useful in a field where comparative approaches have reigned for years (race in the U.S. vs. Brazil, for example), but its usefulness as a methodology remains vital in areas where it has been less used. Legal scholars have tended to remain parochial in their focus, and I think legal comparative approaches have yet to make inroads to such an extend that it is time to turn away from them.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/11/going-beyond-national-legal-histories/">Going beyond national legal histories</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.ethanzuckerman.com/blog/2010/11/09/john-palfrey-the-path-of-legal-information/">John Palfrey: The Path of Legal Information</a> (ethanzuckerman.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=34cdcfc5-19b0-4eea-8514-c53b61af0d7e" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Going beyond national legal histories" https://inpropriapersona.com/articles/going-beyond-national-legal-histories/ Thu, 04 Nov 2010 18:00:52 +0000 0d6327bd163ce81bfb1904ea2e4f6e2e <p><a href="http://www.flickr.com/photos/caveman_92223/3185534518/"><img class="alignright" title="&quot;World Map 1689 — No. 1&quot; by Flickr user Chuck Coker, used under a Creative Commons Attribution-NoDerivs 2.0 license" src="http://farm4.static.flickr.com/3309/3185534518_d9d53b1f09_m.jpg" alt="" width="240" height="207" /></a>&#8220;Lived history,&#8221; <a href="http://ark.cdlib.org/ark:/13030/kt9j49q61r/">writes Bender</a>, &#8220;is embedded in a plenitude of narratives. &#8230; [O]ver time, different themes or concepts, different narratives, will be deemed significant and emphasized&#8221; (page 1). The &#8220;plenitude of narratives&#8221; is formed by the stories historians tell about the past, by people at the time speaking and living their own experiences, by groups (ethnicities, races, classes, nations, cities) sharing common understandings, and is thus never simple nor unitary.</p> <p>So far, my legal research tends to focus on a national narrative, and is an attempt to capture a sense of the national consciousness (&#8220;expectations of privacy,&#8221; for example) of various times. Ideally, though, while I still intend to pretend I can capture some sense of this national sense (if only for appearances sake), I would like to narrow into just a few of stories within the “plenitude of narratives,” and give the stories of the people involved in the actual cases that helped set the national legal landscape (which will serve as stand-in, albeit a distorted one, for the national consciousness). And although American law is framed as a national standard, I nonetheless am aware that &#8220;we are part of abroad.&#8221;</p> <p>I mean this in numerous senses. First, the impact of law does not end at a political border, even if its technical jurisdiction might. Other countries receive the influence of American lawmaking and, in turn (and despite itself, in some cases), American law is influenced by foreign law. This influence could be relatively direct (judges borrowing logic and decisions from abroad, an especially common occurrence in early American law, when English decisions were still often looked to regularly). It could also be more indirect: plaintiffs or defendants could be immigrants, technologies could have been developed elsewhere, or &#8220;foreign agents&#8221; (i.e., spies!) may be involved. Regardless of the reason, American law is never entirely American&#8211;although here as much as anywhere this fiction is maintained, both within the legal community and, as Bender suggests, in American historiography. As he points out, though, its critical to rethink this “bifurcation” between the &#8220;international&#8221; and the United States, for without that undoing, &#8220;one has only the most distorted notion of the national history of the United States and very little historical foundation for understanding the contemporary relationship of the Unites States to transnational and global developments&#8221; (see <a href="http://ark.cdlib.org/ark:/13030/kt9j49q61r/">Bender</a> again, on page 6).</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:American_law_digests.jpg"><img title="American law digests at the Law Society of Upp..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/1/1a/American_law_digests.jpg/300px-American_law_digests.jpg" alt="American law digests at the Law Society of Upp..." width="300" height="249" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Saying this, though, is often easier that doing it, especially when looking at legal history&#8211;American jurists are often (with some exceptions, especially in regards to early English law) careful to excise outside influences or matters from their written decisions, and often decisions are, in effect, &#8220;sanitized&#8221; versions of the case or controversy. Focusing on the &#8220;micro-history&#8221; of a case and on the individual players may be one method of access&#8211;at the very least because so many Americans are immigrants&#8211;or somehow otherwise distinct from the unitary fiction of &#8220;American.&#8221; (<a href="http://ark.cdlib.org/ark:/13030/kt9j49q61r/">Kelly’s point on p. 125</a> about the citizenship status of African Americans pre-<a class="zem_slink" title="Fourteenth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution">14th Amendment</a> speaks clearly to this in terms of one group within the United States).</p> <p>Another approach that may be fruitful would be to compare and contrast at least one other nation with a different legal tradition to the United States to see how law was developed and applied in that context, and to use that to expand beyond a purely nationalistic discourse. A variation on this approach would be to look at England or Canada, nations with very similar legal systems to the Unites States, and see how they dealt with similar issues.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ceaad3cc-921e-4de2-98f9-2b078a7d94d9" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Changing technology, changing expectations of privacy" https://inpropriapersona.com/articles/changing-technology-changing-expectations-of-privacy/ Mon, 01 Nov 2010 17:30:47 +0000 a9af4e2addcddae35185ca96b44aebb3 <p><a href="http://www.flickr.com/photos/gorbould/4309998069/in/photostream/"><img class="alignright" title="&quot;Law library steps&quot; by Flickr user Paul Gorbould, used under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 license" src="http://farm3.static.flickr.com/2692/4309998069_4c4e5cd420_m.jpg" alt="" width="160" height="240" /></a>Do changing expectations of privacy through time reflect changes in societal attitudes, legal reasoning, or technology? Do broad societal ideals and conceptions drive both the law and the technology? Does individual practice change to adapt to the law, or does the law adapt to our practices? Do our expectations or privacy change because of specific new technologies, or instead do our changing expectations reflect a broad change in attitudes independent of technology? Obviously, these are big questions. My goal here is to compare and contrast the legal changes that occurred as new technologies&#8211;state-run postal services, the telegraph, the telephone, and email, for example&#8211;emerged, and through this to seek insight into these larger questions.</p> <p>To do this I plan to begin with the simplest archive I have access to: <a href="http://scholar.google.com/">Google Scholar’s case-law database</a> of all federal appeals court and <a class="zem_slink" title="Supreme Court of the United States" href="http://maps.google.com/maps?ll=38.8907083333,-77.0043444444&amp;spn=1.0,1.0&amp;q=38.8907083333,-77.0043444444 (Supreme%20Court%20of%20the%20United%20States)&amp;t=h" rel="geolocation">Supreme Court</a> opinions, along with as many state opinions as Google allows access to. This is, in a sense, an “objective” archive, since every decision (of the appropriate court level) is archived. On the surface, at least, archivists have no influence or the process, and their biases (unconscious or not) are not reflected in what is kept. This is especially true in Google’s archive, since keyword searching and automated linking joins cases together, instead of human editors who categorize and link cases (as has historically been the case with <a href="http://www.westlaw.com">Westlaw</a> and <a href="http://www.lexisnexis.com/">LexisNexis</a>, along with their predecessor paper versions).</p> <p>But if the archive itself is “unbiased,” nonetheless the materials that end up there are deeply embedded in societal values, biases, and beliefs. This is especially true because <a class="zem_slink" title="Trial court" href="http://en.wikipedia.org/wiki/Trial_court" rel="wikipedia">trial court</a> opinions are much harder to find, and are archived haphazardly at best. As a result, only the cases or controversies that courts deem important enough to accept on appeal make it into the archive at all. Additionally, since the archive consists only of the final court decision, without briefs, trial testimony, etc., the voices of the participants are generally silenced in favor of the court’s view and perspective, which becomes the final word in the archive.</p> <p>To pull from our readings, put in <a href="http://hhs.sagepub.com/content/11/4/17.short?rss=1&amp;ssource=mfc">Richard Harvey Brown and Beth Davis-Brown’s terms</a>, &#8220;relations of power and domination are often masked by or reduced to technically instrumental relations of efficiency; that is, moral and political questions are displaced to nonmoral and nonpolitical technical or professional discourse.&#8221; In this sense, archives maintained for ostensibly objective purposes may be more subtly misleading because what they hide is better masked, and what they reveal is more easily taken to be the complete truth, untainted by attempts to manipulate the narrative. A similar kind of problem to that described above is, I think, the case with this archival source: since &#8220;everything&#8221; is archived, there appears to be no bias, but in fact, these biases are simply masked behind the appearance of objectivity.</p> <p>My intent is to seek out the, first, the earliest examples of a technology appearing in the archive, and then see how courts have dealt with it over time, particularly in relation to issues of privacy (including the <a href="http://caselaw.lp.findlaw.com/data/constitution/amendment04/">Fourth Amendment</a> or &#8220;search and seizure&#8221;). I intend also to look to legal treatises which provide information of the key&#8211;or most cited&#8211;cases, and see how the court conceptualizes the relation of the technology with privacy, and how this conceptualization may have changed over time. I wish to tease out, if possible, whether these changes are because of changing societal norms related to privacy as a concept or because technology (or the use of technology) has changed.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 152px" class="wp-caption alignleft"><a href="http://www.flickr.com/photos/35740357@N03/4127742041"><img title="Petition for a Writ of Certiorari from Clarenc..." src="http://farm3.static.flickr.com/2756/4127742041_2f6f04ee90_m.jpg" alt="Petition for a Writ of Certiorari from Clarenc..." width="152" height="240" /></a><figcaption class="wp-caption-text">Image by The U.S. National Archives via Flickr</figcaption></figure> </div> <p>If possible, once I have dealt with the easily available appeals court and Supreme Court case law, I would like to expand my archival sources to include trial court information: lawyer&#8217;s briefs, trial transcripts, and so on. Additionally, I would like to examine Congressional testimony related to new technologies, and see how lawmakers may have conceptualized privacy. But these sources are be more difficult to access, especially in regards to older technologies, where sources are still print-based and stored in, for example, Washington, D.C.</p> <p>Ultimately, I would like to get at attitudes, beliefs, and practices of the people “behind” the law and the cases, and not just speak in general terms about &#8220;societal values.&#8221; Specific cases can be excellent vehicles to achieve this, since each court case reflects a specific battle between specific opponents (plaintiffs and defendants). But getting access to their voices can be problematic, as I’ve indicated above, due to the erasure in the archive of many of the original materials (briefs, trial transcripts, depositions, etc.)</p> <p>So we&#8217;ll see where this research approach takes me. Ideas, thoughts, etc. are appreciated!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://volokh.com/2010/08/31/fourth-amendment-stunner-judge-rules-that-cell-site-data-protected-by-fourth-amendment-warrant-requirement/">Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement</a> (volokh.com)</li> <li class="zemanta-article-ul-li"><a href="http://themoderatevoice.com/89276/corporate-persons-have-privacy-rights-too/">Corporate Persons Have Privacy Rights, Too</a> (themoderatevoice.com)</li> <li class="zemanta-article-ul-li"><a href="http://www10.nytimes.com/2010/10/05/opinion/05tue2.html?_r=5">Editorial: An Illegal Search, by GPS</a> (nytimes.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=45ffbefc-363c-493f-a110-243156119d10" alt="" /></div> "Dorinda Outram on the Enlightenment" https://inpropriapersona.com/articles/dorinda-outram-on-the-enlightenment/ Thu, 28 Oct 2010 17:30:28 +0000 5745e67345c8cd24d0974460081903c9 <p><a href="http://www.flickr.com/photos/chough/348916676/"><img class="alignright" title="&quot;Natural History Museum HDR&quot; by Flickr user Tom Goskar, used under a Creative Commons Attribution-NonCommercial-ShareAlike license " src="http://farm1.static.flickr.com/148/348916676_551f3ef390_m.jpg" alt="" width="179" height="240" /></a>In her book <a href="http://www.amazon.com/gp/product/0521837766?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0521837766">The Enlightenment (New Approaches to European History)</a><img style="border: none !important; margin: 0px !important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0521837766" alt="" width="1" height="1" border="0" />, Dorinda Outram gives a broad introduction to the history and historiography of the Enlightenment. She begins by attempting to define what the term means. She does not, however, ever give us a single, unified meaning, and is instead careful to point out that the &#8220;Enlightenment has been defined in many different ways&#8221; (1). Thus, she says, the Italians, Germans, and French&#8211;to name only three locations&#8211;all mean something slightly different in by the related terms as applied to themselves and their works. Despite this potential for complexity, there has been a certain homogeneity in some historical accounts. <a class="zem_slink" title="Peter Gay" href="http://en.wikipedia.org/wiki/Peter_Gay" rel="wikipedia">Peter Gay</a>, for example, sees the &#8220;Enlightenment as a unity, and defines its chronology in terms of the lives of the great thinkers&#8221; (3). Above all, for Gay and many other &#8220;traditional&#8221; historians, these great thinkers were primarily (but not exclusively) French <em>philosophes</em>: Voltaire, Diderot, and Rousseau, for example.</p> <p>Outram, though, takes the more contemporary historical approach, which emphasizes instead that the Enlightenment was an intersection of debates, and not one unified stream of thought. Older historical approaches, like Gay&#8217;s, emphasized that the Enlightenment was really a value system based on rationality. In contrast, new historical approaches&#8211;to which Outram is clearly most sympathetic&#8211;emphasize the social and political contexts of Enlightenment ideas, and include global connections between Europe and the rest of the world: &#8220;Enlightenment,&#8221; Outram writes, &#8220;had many meanings [and] affect[ed] many levels of society and politics, and [was] present not just in Europe, but throughout most other parts of the world touched by European influence&#8221; (10).</p> <h2>Social Context</h2> <p>Outram points out that recent historical research has heavily emphasized social context instead of French <em>philosophes</em>. The social setting of the Enlightenment was one of rapid and dramatic change, both in Europe and outside of it. Economic expansion, increasing urbanization and a rapidly growing population all provided key impacts of the development of Enlightenment ideology. Additionally, improving communications and transportation methods linked Europe and the world together much more tightly than in the past.</p> <p>Along with these shifts came an increase in social integration and a reduction in class distinctions, along with a marked increase in literacy rates. Outram suggests that recent historical research has highlighted the dramatic shifts in the production and accessibility of ideas, most especially in the case of print media. New social institutions were constructed based on the interchange of idea, rather than to mark or display social and political rank. This meant, for example, the growth of public lectures, coffee-house debates, and even lending libraries. The public sphere&#8211;here she looks to Habermas&#8211;began to develop and expand, and the overall debate and marketplace of ideas grew beyond the elite.</p> <h2>Government</h2> <p>Whether social context led the way or philosophy did, the Enlightenment pushed the borders of who was capable of making decisions in society. If &#8220;everyone&#8221; (well, a larger subset than before, at least) was rational, then kings could not simply justify their rule through divine right. The economic expansion and growth put spread power and wealth more broadly, while a literary revolution put ideas in the heads of the common people. As a result, the Enlightenment led to reform movements in most European states.</p> <p>Interestingly, at the same time that royalty lost power, the state gained it. The personal ends and desires of monarchs became disconnected from the needs of the state. Thus, while the Enlightenment may have weakened divine basis of kingly power, it also led to greater intervention in the lives of citizens and subjects: public health, education, and economic regulation. While some of this resulted from new global pressures to succeed in international economic relations, its results radically reshaped domestic policies on many states. Reforms may not have been intended to change social mobility and power relations, but they did. In short, the Enlightenment raised major problems for monarchic states, but was nevertheless of critical importance when states took reform measures to compete effectively with the world.</p> <h2>Exploration</h2> <p>Along with colonial expansion and domination came greater knowledge of other cultures beyond Europe. Along with this global expansion came contradictions. The ideals of the Enlightenment suggested universal rationality and equality, but the treatment by Europeans of their colonies and of foreign cultures generally did not comport with these ideals:</p> <blockquote><p>Enlightenment reactions to exotic worlds and people were thus extraordinarily contradictory. Huron Indians and Pacific islanders were called to do work in solving European political problems. Many descriptions of a common humanity did nothing to end the slave trade. The contradictions and equivocations of European attitudes were also the pattern for the process of globalization in the Enlightenment (59).</p></blockquote> <h2>Slavery</h2> <p>Even though slavery and colonialism thrived during the Enlightenment, nonetheless its ideals led to more than isolated attacks on the institution of slavery for the first time. Thinkers at the time recognized the paradox of permitting the existence of slavery, while extolling equality, freedom, and controls on arbitrary power.</p> <p>To overcome this apparent contradiction, some Enlightenment thinkers countered this by linking race with slavery. Different races, then, could be seen as naturally differing in levels of rationality, justifying differential treatment&#8211;including slavery. Despite this, the growing diffusion of Enlightenment ideologies that valorized sentiment, humanity, and benevolence may well have been key in abolition movements, according to Outram (75).</p> <h2>Gender</h2> <p>Along with linking race and rationality in order to justify slavery, Enlightenment culture in Europe linked gender and rationality. Thus, But most of European culture still portrayed women as lacking in intellectual capacity, and thus justified their differential treatment and lack of rights. Still, cracks in the distinctions appeared, as with the rise of the French salon culture, which gave some women a role in engaging with Enlightenment ideas.</p> <p>Enlightenment thinkers seemed to assert, on the one hand, that women, as human beings, could have rights; but also, on the other, that because of their alleged irrationality and lack of autonomy, they should not be allowed to take part in politics (92). Outram also suggests that, although during the Enlightenment period there was little change in the way women were treated, the arguments of Enlightenment thinkers paved the way for those who were to bring about changes to gender roles later.</p> <h2>Science</h2> <p>First, of course, the &#8220;natural philosophy&#8221; of the Enlightenment was not the &#8220;science&#8221; of the 21st century. The term is anachronistic, and the pursuit was different. Still, the efforts of natural philosophers in the Enlightenment period, especially their increasing focus on rationality, laid the groundwork for what would become “science.”</p> <p>Natural philosophy was not a major employer of labor, and the intellectual status of natural philosophers was weak. There was little institutional organization, and such structures were weak (95). There was little governmental support, and very few men could support themselves through their pursuit of natural philosophy (94). Still, the shift to rationality helped pave the way, along with new &#8220;scientific&#8221; approaches to change the approaches to knowledge.</p> <h2>Religion</h2> <p>The Enlightenment focus on rationality and reason also led to the questioning of religious norms. But this questioning did not mean the death of religion, but rather a shift in approach to it. After all, Newton was deeply religious. But the opening up of religion to rational debate led to an increasing debate about toleration, which was especially critical for politics, which needed to calm down religious violence in order to increase stability.</p> <p>Reactions to the Enlightenment focus on reason and rationality differed. For example, one way out of the apparent contradiction between religion and rationality was Deism, with its total hostility to revelation. Another was to reject the attempt to make Christianity &#8220;reasonable,&#8221; and return to a view of religion which emphasized faith, trust in revelation, and personal witness to religious experience (122).</p> <h2>Revolution</h2> <p>Outram asks if the French Revolution was a consequence of the Enlightenment? Or if the Enlightenment was a consequence of revolution? The answer is not clear, but revolutions were clearly associated with the Enlightenment (even if the relation was not one of causation):</p> <blockquote><p>One could even say that Enlightenment began with Revolution, that which occurred in England in 1688, which created the conditions for the emergence of the philosophy with which John Locke discussed new thinking about the relationship between ruler and ruled.</p></blockquote> <p>What the Enlightenment contributed was not only a great number of new, non-traditional ways of defining and legitimating power, through ideas such as &#8220;natural law,&#8221; &#8220;reason,&#8221; and so on, it had also mobilized sections of society into &#8220;public opinion,&#8221; which Kant had earlier identified as requiring tight control if it were not to disrupt social and political order.</p> <h2>Conclusion</h2> <p>Outram attempts to add complexity to scholarship of the Enlightenment. She succeeds, I think, in doing exactly this, although for all her talk about the Enlightenment&#8217;s multiplicities, she nonetheless still titles her book in the singular: &#8220;The Enlightenment.&#8221; This suggests that, despite social context, political complexities, and so on, there is nonetheless something unifying about what occurred during this period of time or, at least, something useful about the unitarian view. Yes, the period was more complex that is indicated by reference merely to a few French intellectuals, but nonetheless, the expressions and ideas of these intellectuals are exactly what historians and intellectuals then and now drew on to form their own ideas. Thomas Jefferson in writing the Declaration of Independence looked to concepts expressed by the <em>philosophes</em>, for example, and later historians like Peter Gay are thus in a sense correct to focus on them. In short, Outram&#8217;s complexity is important, but so is Gay&#8217;s unity.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20101205210701/http://www.lewrockwell.com:80/spl2/rescuing-the-enlightenment.html">Rescuing the Enlightenment</a> (lewrockwell.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20111210005000/http://graham.doel.org/index.php/2008/02/04/the-enlightenment-by-outram-a-summary/">&#8220;The Enlightenment&#8221; by Outram, a summary</a> (graham.doel.org/)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=be64520e-7955-4fb7-8c9a-922eb9729337" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Technology and the archive" https://inpropriapersona.com/articles/technology-and-the-archive/ Mon, 25 Oct 2010 21:35:30 +0000 6b54ba9a2c51bd21c6938f42b1e08d27 <p><a href="http://www.flickr.com/photos/chrismillet/2612545438/in/photostream/"><img class="alignleft" title="Wooden CMS by Flickr user Chris Millet, used under a Creative Commons Attribution-NonCommercial-ShareAlike license" src="http://farm3.static.flickr.com/2057/2612545438_8963245db7_m.jpg" alt="" width="240" height="180" /></a>One of my primary interests is the connection between technology and law. The development of archives is one place where this connection plays out in practice. This I am deeply interested in the question presented by <a href="http://www.nyu.edu/classes/bkg/methods/schwartz.pdf">Schwartz and Cook</a> in as to what the impact of new technologies&#8211;like &#8220;postal services, the telegraph, the telephone, radio, photography&#8221;&#8211;was the production, preservation, and use of records and archives since the mid-nineteenth century.&#8221;</p> <p>While we tend to think most about modern technological shifts due to electronic records, older technological innovations&#8211;such as the typewriter and modern filing mechanisms&#8211;were just as radical. <a href="http://tcs.sagepub.com/content/23/2-3/591">Featherstone</a> gives the flavor of some of the modern concerns related to the instability and massiveness of electronic data:</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 150px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/File:Nara-archives.JPG"><img title="Nara-archives" src="http://upload.wikimedia.org/wikipedia/commons/b/b6/Nara-archives.JPG" alt="Nara-archives" width="140" height="159" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/File:Nara-archives.JPG">Wikipedia</a></dd> </dl> </div> </div> <blockquote><p>How are decisions on what to collect, what to store, what to throw away and what to catalogue to be made? Today this is not just a question of which material to put on shelves in the stack and which to leave in unlabeled boxes in the back-rooms, but how to deal with potentially unstable electronic archives. This can be illustrated by the US Government <a class="zem_slink" title="National Archives and Records Administration" rel="geolocation" href="http://maps.google.com/maps?ll=38.8927805556,-77.022975&amp;spn=0.01,0.01&amp;q=38.8927805556,-77.022975 (National%20Archives%20and%20Records%20Administration)&amp;t=h">National Archives and Records Administration</a> in Washington, DC, which faced the problem of how to preserve, organize and catalogue the 16-24 million electronic messages accumulated by the Clinton Administration.</p></blockquote> <p>But although this highlights the modern example, I think such questions are not radically different from those posed by the ability to file, catalog, and maintain archival paper records in the 18th and 19th centuries.</p> <p>An interesting distinction between the implementation of older technologies of archives and modern ones emerged in <a href="http://tcs.sagepub.com/content/23/2-3/591">Featherstone’s article</a>:</p> <blockquote><p>the downsizing of the public sector within nation-states since the 1980s &#8230; has led to commercial sponsorship of archives being sought to fill the funding gap. The problem here is that the commercial logic revolves around the need to get good returns on investment: high profile archives of the good and the great would then be preferred by sponsors to those of lesser known figures or local interest.</p></blockquote> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 150px" class="wp-caption alignleft"><a href="http://commons.wikipedia.org/wiki/File:British_East_India_Company_flag.svg"><img class=" " title="First flag of the Honourable East India Company" src="http://upload.wikimedia.org/wikipedia/commons/thumb/3/32/British_East_India_Company_flag.svg/300px-British_East_India_Company_flag.svg.png" alt="First flag of the Honourable East India Company" width="150" height="75" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>I wonder, though, if this is a distinction that is completely supported historically? After all, wasn’t the <a href="http://en.wikipedia.org/wiki/East_India_Company">East India Company</a> a driver of archival methods in the past, and wasn’t that driver one of commercial need? Perhaps the distinction is more one of specialization. Modern archival technologies are being driven by companies that are seeking to profit from the technology itself, and specialize in providing that archival technology. This, instead of archives being subservient to other needs, products, etc., archives today are the product.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 110px;"> <dt class="wp-caption-dt"><a href="http://www.daylife.com/image/0gFAf8k0nL9FQ?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=0gFAf8k0nL9FQ&amp;utm_campaign=z1"><img title="BERLIN - JANUARY 16: Rows of original case do..." src="http://cache.daylife.com/imageserve/0gFAf8k0nL9FQ/100x150.jpg" alt="BERLIN - JANUARY 16: Rows of original case do..." width="100" height="150" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com">@daylife</a></dd> </dl> </div> </div> <p>Another point that emerged as critical for me was the idea that the archive enshrined and reflected power relations. While this is true, I think it can be overstated in terms of intentionality. Thus I particularly responded to <a href="http://www.nyu.edu/classes/bkg/methods/schwartz.pdf">Schwartz and Cook&#8217;s comment</a> about this: &#8220;to assert that archives and records are only about power, about imposing control and order, is an incomplete view. We are not suggesting that traditional archivists engage consciously in conspiracy or collusion, let alone that they are power-mad.&#8221; In other words, while it’s critical to remember that archiving is an exercise of power, that isn’t their primary purpose, and focusing too much on the power behind the archive (reading against it, in other terms) might well be neglecting the importance of other, more intentional facets of the archive (reading with it, perhaps).</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.archives.gov/">National Archives and Records Administration</a> (archives.gov)</li> <li class="zemanta-article-ul-li"><a href="http://www.archivesnext.com/?p=1655">Reflections on &#8220;Archiving Social Media&#8221;</a> (archivesnext.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=60ded14f-9406-40df-ae89-477eb04d06e0" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The archive and the state" https://inpropriapersona.com/articles/the-archive-and-the-state/ Sun, 17 Oct 2010 22:34:09 +0000 dd7f41bf1a8f5359071f96386d9cdb51 <p><a href="http://www.flickr.com/photos/dolescum/3567689465/"><img class="alignright" title="Archives' stacks&quot; by Flickr user dolescum (Anne G), used under a Creative Commons Attribution-NonCommercial-ShareAlike 2.0 license" src="http://farm3.static.flickr.com/2468/3567689465_97e414a22f_m.jpg" alt="" width="240" height="180" /></a>Archives, the collection of files and materials (electronic or physical) stored and maintained for future reference, have an intimate connection with state power&#8211;after all, those who are in power fund and create them, leading archives to reflect the ideas, beliefs and sometimes contradictions of those who control them.</p> <p>The end of <a href="http://www.columbia.edu/cu/history/fac-bios/Ngai/faculty.html">Mae Ngai</a>’s piece on the historical creation of the legal and social category of <a class="zem_slink" title="Illegal immigration" rel="wikipedia" href="http://en.wikipedia.org/wiki/Illegal_immigration">illegal immigrants</a>, &#8220;<a href="http://www.historycooperative.org/journals/lhr/21.1/ngai.html">The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the U.S., 1921-165</a>,&#8221; caught my eye in relation to the issue of archival research and the potential for state-created archives to be used, in a sense, <em>against</em> the entity that created them:</p> <blockquote><p>She gratefully acknowledges the Central Office of the <a class="zem_slink" title="Immigration and Naturalization Service" rel="homepage" href="http://www.uscis.gov/portal/site/uscis">U.S. Immigration and Naturalization Service</a> in Washington, D.C., for allowing her access to its records and INS Historian Marian Smith for her generous assistance.</p></blockquote> <p>Ngai, evidently, used (at least in part) the archives and historian of the INS (now defunct, with its functions now split within three agencies of the <a class="zem_slink" title="United States Department of Homeland Security" rel="geolocation" href="http://maps.google.com/maps?ll=38.9380555556,-77.0822222222&amp;spn=0.01,0.01&amp;q=38.9380555556,-77.0822222222 (United%20States%20Department%20of%20Homeland%20Security)&amp;t=h">Department of Homeland Security</a>) to investigate and reveal the workings of state power, including revealing potential flaws of the organization itself.</p> <p>This ties in nicely with <a href="http://web.archive.org/web/20150716174249/http://www.newschool.edu/nssr/faculty.aspx?id=10416">Ann Stoler</a>’s piece, &#8220;<a href="http://www.springerlink.com/content/n7m5gn25km285m19/">Colonial Archives and the Arts of Governance</a>,&#8221; in the sense that the archives of those in power (or their organizations and institutions) can be used for more than the mere maintenance and continuation of that power. Administrations may have maintained archives for their own purposes, in order to foster institutional memories to better exploit their colonies or more efficiently prosecute their missions, but these archives can be effectively exploited by historians to go beyond these original purposes, to cut against power and state intention.</p> <p>Although I might argue that democracies may often prove best at creating and maintaining “unbiased” archives (in the sense that most everything is kept, or at least in the sense that what is kept is left to professional archivists and not to the vagaries of state or organization intention), non-democratic colonial administrations and totalitarian regimes also create and maintain archives of use to historians. Since even “unbiased” archives enshrine, at the very least, unconscious judgments as to importance and organization (for even the most intently objective archivist cannot keep everything nor organize what is kept without imposing some sense of outside structure and judgment), perhaps regimes with more obvious purposes actually create some of the most useful archives. If the purpose is obvious, then can it not more easily be seen through, after all?</p> <p>In Richard Harvey Brown and Beth Davis-Brown’s terms, “relations of power and domination are often masked by or reduced to technically instrumental relations of efficiency; that is, moral and political questions are displaced to nonmoral and nonpolitical technical or professional discourse” (&#8220;<a href="http://hhs.sagepub.com/content/11/4/17.short?rss=1&amp;ssource=mfc">The Making of Memory: The Politics of Archives, Libraries, and Museums in the Construction of National Consciousness</a>,&#8221; 30). In this sense, archives maintained for ostensibly objective purposes may be more subtly misleading because what they hide is better masked, and what they reveal is more easily taken to be the complete truth, untainted by attempts to manipulate the narrative. As Brown suggests, though, the solution is not to dismiss such archives, but rather to be aware of this as we focus to “build a reflexive, democratic society” (31).</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.archivesnext.com/?p=176">ArchivesNext &#8221; What are archives good for?</a> (archivesnext.com)</li> <li class="zemanta-article-ul-li"><a href="http://publicarchives.org/introducing-archives-and-access.html">Archives &amp; Access</a> (publicarchives.org)</li> </ul> "Fashion fakes: copyright, trademark and creativity" https://inpropriapersona.com/articles/fashion-fakes-copyright-trademark-and-creativity/ Thu, 26 Aug 2010 03:06:14 +0000 80502a0c3cfbdddd8f16bbb4dc0760e5 <p><a href="http://www.flickr.com/photos/mvjantzen/4395066941/in/photostream/"><img class="alignright" title="&quot;Cheap Purses&quot; by Flickr user M.V. Jantzen, used under a Creative Commons Attribution-NonCommercial license." src="http://farm3.static.flickr.com/2701/4395066941_41ca6565dd_m.jpg" alt="" width="240" height="160" /></a>There is no protection from copying designs in the fashion industry, so how are police able to crackdown on knock-offs?</p> <p><a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">Copyright</a> originally only applied to printed works, and though it has been extended to sound recordings, movies, and software, its protections have never yet covered <a class="zem_slink" title="Fashion design" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fashion_design">fashion design</a>. Copyright in the American tradition provides an incentive to encourage the creation of new works, with the goal of benefitting everyone by increasing the amount of creative works. Despite this lack of statutory incentive, the fashion industry has never lacked for creativity&#8211;but nonetheless, some still think fashion needs protection in order to be innovative:</p> <blockquote> <p style="text-align: left;">On Aug. 5, Sen. Charles E. Schumer (D-N.Y.) introduced S.3728: The Innovative Design Protection and Piracy Prevention Act. He&#8217;s got 10 co-sponsors &#8212; including three Republicans &#8212; and a big idea: to extend copyright protections to the fashion industry, where none currently exist. That&#8217;s right: none. I &#8212; well, not I, but someone who can sew &#8212; can copy Vera Wang&#8217;s (extremely expensive) dress and sell it to you right now (for much less), and Wang can&#8217;t do a thing about it.</p> <p style="text-align: left;">via <a href="https://www.washingtonpost.com/wp-dyn/content/article/2010/08/20/AR2010082006330.html">In copycats vs. copyright, the knock-off wins</a> from the Washington Post.</p> </blockquote> <p>So if Sen. Schumer has to introduce a law to protect the fashion industry from fakes, how come knock-offs are already seized by police? The answer is that even though copyright doesn&#8217;t protect fashion, <a class="zem_slink" title="Trademark" rel="wikipedia" href="http://en.wikipedia.org/wiki/Trademark">trademark</a> does. Copyright gives a medium-term monopoly to creators, while provides much more limited protection&#8211;but lasts as long as the brand protects and uses its mark.</p> <p>In short, it&#8217;s perfectly OK to copy a high-end purse, as long as you don&#8217;t copy the logo and brand of the designer. Copy all you want, but don&#8217;t pretend your copy is the real thing. The point of this&#8211;as with trademark generally&#8211;is to avoid confusing or misleading customers. From the business side, the point is to keep poor imitations from cheapening the investment in the brand.</p> <p>Of course, it&#8217;s not always clear what&#8217;s merely a copy vs. what&#8217;s actually counterfeit, but that&#8217;s why we have lawyers!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20100823/02293810724.shtml">The Many Ways In Which Fashion Copyrights Will Harm The Fashion Industry</a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="http://runway.blogs.nytimes.com/2010/08/05/schumer-bill-seeks-to-protect-fashion-design">Schumer Bill Seeks to Protect Fashion Design</a> (runway.blogs.nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="http://ipkitten.blogspot.com/2010/08/freedom-to-copy-and-fashion-industry.html">&#8220;Freedom to Copy&#8221; and the Fashion Industry</a> (ipkitten.blogspot.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ff764b9d-f87b-4ad3-885c-ce0204e7ddd1" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Measuring the impact of technology on the law" https://inpropriapersona.com/articles/measuring-the-impact-of-technology-on-the-law/ Wed, 18 Aug 2010 17:45:54 +0000 8d28ccfd29b1ec5526ae4511abe9b7e6 <p><a href="http://www.flickr.com/photos/sulawlib/4743364296/in/photostream/"><img class="alignright" title="&quot;My new copy of the Bluebook&quot; from the Seattle University Law Library, used under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 license." src="http://farm5.static.flickr.com/4118/4743364296_582c638c5c_m.jpg" alt="" width="160" height="240" /></a>It&#8217;s difficult to come up with more quantitative measurements to look at how technology has impacted law. One could look at the development of new technologies (via patent applications, perhaps?) and then look to see how soon afterwards the invention began to show up in legal cases. Another interesting idea would be to see if changes in technology&#8211;the development of new citation systems, more rapid dissemination of decisions and publications, and later the creation of electronic repositories such as Lexis and Westlaw&#8211;had any impact on the way lawyers and judges developed law.</p> <p>Certainly textual and citation analysis approaches are not new. The scientific community has been analyzing citation patterns to determine influence since the 1960s and the development of the <a class="zem_slink" title="Science Citation Index" rel="wikipedia" href="http://en.wikipedia.org/wiki/Science_Citation_Index">Science Citation Index</a>. In the law, Shepherd&#8217;s and <a class="zem_slink" title="Westlaw" rel="wikipedia" href="http://en.wikipedia.org/wiki/Westlaw">KeyCite</a> are two competing methods to help determine the influence of legal cases through citation analysis.</p> <p>My idea, though, is to use similar techniques to try to measure the impact of new technologies on both courtroom decisions, both substantively and&#8211;for lack of a better term&#8211;stylistically.</p> <p>As an example of the first concept, X-rays were developed around 1895 by <a title="Wilhelm Röntgen" href="http://en.wikipedia.org/wiki/Wilhelm_R%C3%B6ntgen">Wilhelm Röntgen</a>. How soon after their development did courts begin to refer to them? <a class="zem_slink" title="Closed-circuit television" rel="wikipedia" href="http://en.wikipedia.org/wiki/Closed-circuit_television">CCTV</a> (surveillance cameras) were first used in the U.S. around 1968&#8211;how long was it before courts began to grapple with the issues? Did it take more or less time than with X-rays? (Obviously I would need a number of other examples.)</p> <p>My second concept is to see if, for example, the number of citations in opinions&#8211;or the length of opinions, for that matter&#8211;increased or decreased as technology changed. Did the introduction of typewriters correlate to increases in opinion length or number of opinions per year per judge? Did the development of citation indexing systems like KeyCite increase the number of citations? Have online and electronic systems increased the number of citations? Similarly, have the types of citations changed? (One way to grossly measure this would be to look at how old the cases cited are when viewed from the perspective of the new decision.)</p> <p>Here&#8217;s a few examples of related ideas:</p> <ul> <li><a href="http://ssrn.com/abstract=1448405">Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court</a></li> <li><a href="http://ssrn.com/abstract=993792">The Hazards of Precedent: A Parameterization of Legal Change</a></li> <li><a href="http://thomsonreuters.com/products_services/science/free/essays/history_of_citation_indexing/">History of Citation Indexing</a> (from <a title="Reuters" rel="homepage" href="http://reuters.com">Thomson Reuters</a>)</li> </ul> <p>Thoughts? Opinions? Anyone done similar work to this, perhaps in another field? What tools might work best?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.dairyscience.info/harvard/referencegen.php">Harvard reference or citation generator</a> (dairyscience.info)</li> <li class="zemanta-article-ul-li"><a href="http://ebiquity.umbc.edu/blogger/2010/08/15/papers-with-more-references-are-cited-more-often/">Papers with more references are cited more often</a> (ebiquity.umbc.edu)</li> <li class="zemanta-article-ul-li"><a href="http://iphylo.blogspot.com/2010/08/social-citations-using-mendeley-api-to.html">Social citations: using Mendeley API to measure citation readership</a> (iphylo.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20110926021454/http://healthlinks.washington.edu:80/howto/impactfactors.html">Impact Factors</a> (healthlinks.washington.edu)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b03aafa2-c808-4551-b54a-c529ef93ee35" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Juries and scientific expertise" https://inpropriapersona.com/articles/juries-and-scientific-expertise/ Mon, 09 Aug 2010 18:49:10 +0000 2f41f249aec246fbb9f1cab56060c012 <p><a href="http://www.flickr.com/photos/elycefeliz/4751797536/"><img class="alignright" title="&quot;SUMMONS FOR JURY SERVICE&quot; by Flickr user elycefeliz, used under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 license." src="http://farm5.static.flickr.com/4115/4751797536_25a680c934_m.jpg" alt="" width="190" height="240" /></a>The United States legal system&#8211;at least, the judicial process in the courtroom, whether those be civil or criminal trials&#8211;is based fundamentally on the notion that an adversarial process is the best one for arriving at the truth of the matter. That is, each side presents their case in their own way, and after their back-and-forth arguments, a neutral <a class="zem_slink" title="Jury" rel="wikipedia" href="http://en.wikipedia.org/wiki/Jury">jury</a> determines which side is closer to correct. Perhaps more accurately stated, one side presents its case, while the other side attempts to show it hasn&#8217;t been proved&#8211;but fundamentally, it&#8217;s an oppositional process.</p> <p>The main idea is that each side should take charge of their own fate, in a kind of courtroom analog to capitalism and free-market individualism, and that this self-determination is the best way to produce fairness and truth. The judge serves merely as the umpire ensuring each side follows the rules, which themselves are designed to create a level playing field between the parties. The jury must decide whose facts to believe.</p> <p>This presents problems when the facts at issue are steeped in scientific dispute. In the American system (and, perhaps to a lesser extent, in all countries following the Anglo-American legal approach), science and scientific evidence emerges and is interpreted through the actions of the parties involved. <a class="zem_slink" title="Expert witness" rel="wikipedia" href="http://en.wikipedia.org/wiki/Expert_witness">Expert witnesses</a> testify <em>for </em>a particular side, and are employed by a particular side.</p> <p>This also presents some problems for scientific experts, who have historically grounded themselves in disinterestedness and objectivity. How does one keep out the influence of one&#8217;s employer, either out of self-interestedness or just a lack of access to anything but what one&#8217;s own side provides?</p> <p>While the U.S. judicial system has developed a number of methods to deal with these problems&#8211;from various rules of evidence, to standards for judging scientific evidence from <em>Frye</em> to <em><a class="zem_slink" title="Daubert standard" rel="wikipedia" href="http://en.wikipedia.org/wiki/Daubert_standard">Daubert</a></em>&#8211;there are still problems for scientific expertise in the courtroom. As just one example, how do you enforce rules against perjury if an expert is testifying to a <em>theory</em>? How are lay juries&#8211;consisting of specifically of people unfamiliar with the evidence, the case, and the facts&#8211;supposed to evaluate and decide between competing scientific claims?</p> <p>Scientists and others have come up with a number of suggestions, but all of them have involved too many changes to the process for lawyers and judges to agree on implementing them. Appointing experts as direct advisors to the court, for example, interferes with traditional ideas of the judge as a neutral umpire, merely refereeing each side&#8217;s zealous advocacy. (Contrast this with European methods, which place approved experts in direct service to the judge, who, incidentally, often gathers evidence as well as overseeing the trial.) Putting scientists into the jury isn&#8217;t too popular with lawyers either&#8211;typically, special knowledge disqualifies you instead, because lawyers don&#8217;t want jurors with preconceived knowledge or ideas.</p> <p>But at the very least, why not allow experts&#8211;jurors who<em> are &#8220;</em>people having ordinary skill in the art&#8221;&#8211;<a href="http://www.freedom-to-tinker.com/blog/dwallach/thoughts-juries-intellectual-property-lawsuits">in the jury on patent trials</a>? Or how about eliminating juries for patent trials entirely? (England, our <a class="zem_slink" title="Common law" rel="wikipedia" href="http://en.wikipedia.org/wiki/Common_law">common-law</a> mother, did this already.) But the Constitution can make such distinctions between types of cases problematic, and in any case, lawyers and judges are invested in the current system. Questioning its fairness in one kind of case might lead to questioning it in other situations.</p> <p>So what to do? How can juries possibly decide between equally compelling and apparently valid scientific theories? Do we need to change the system? Or can lay juries do just fine, despite the scientific complexities of many cases?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://socyberty.com/law/the-daubert-standard/">The Daubert Standard</a> (socyberty.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/05/BUMH1EP2BF.DTL">SFgate.com Chevron: Outtakes prove collusion with expert</a> (sfgate.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2f9c7e01-0ab2-4671-a6cb-d2b646e3ae26" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Implications of the AP licensing scheme" https://inpropriapersona.com/articles/implications-of-the-ap-licensing-scheme/ Tue, 06 Jul 2010 18:31:26 +0000 0dad36a444689a9d92cf01505102b9d2 <p><a href="http://www.flickr.com/photos/celinesphotographer/2598816622"><img class="alignright" title="&quot;newspaper kitty&quot; from Flickr user Brit, used under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 license" src="http://farm4.static.flickr.com/3213/2598816622_048093aecb_m.jpg" alt="" width="240" height="160" /></a>So, the <a class="zem_slink" title="Associated Press" rel="homepage" href="http://www.ap.org">AP</a> has in the past made a big deal about <a href="http://nielsenhayden.com/makinglight/archives/010341.html">holding on to the rights to every tiny little bit</a> of what they right (essentially denying that <a class="zem_slink" title="Fair use" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fair_use">fair use</a> even exists).</p> <p>Who better than those snarky peeps at <a class="zem_slink" title="Woot" rel="homepage" href="http://www.woot.com/">Woot</a> to call them on the implications of such a scheme?</p> <blockquote><p>So, The AP, here we are. Just to be fair about this, we’ve used your very own pricing scheme to calculate how much you owe us. By looking through the link above, and comparing your post with our original letter, we’ve figured you owe us roughly $17.50 for the content you borrowed from our blog post, which, by the way, we worked very very hard to create.</p> <p>via <a href="http://woot.com/">Woot® : One Day, One Deal™</a>.</p></blockquote> <p>One might argue, I suppose, that somehow the material produced by &#8220;the media&#8221; is different from what the rest of us produce. While certainly such a scheme could be implemented, it hardly seems fair. More importantly at the moment, of course, <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright law</a> makes no such distinction (even if some have <em>attempted</em> to embrace/extend the so-called &#8220;<a href="http://www.eff.org/press/archives/2010/06/22">hot news</a>&#8221; doctrine to create the potential basis for such a distinction).</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20100706/01260510077.shtml">Woot Asks AP To Pay Up For Quoting Woot Blog Post Without Paying</a> (techdirt.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ee18a6e9-faf6-4658-bc29-62be2603f59c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The marketplace of ideas" https://inpropriapersona.com/articles/the-marketplace-of-ideas/ Fri, 25 Jun 2010 17:30:52 +0000 6eac42d0ba42d5dc118fe77f9bcb6ef8 <p><a href="http://www.flickr.com/photos/64425827@N00/3195262056/"><img class="alignright" title="&quot;Edison_Eula_closeup&quot; by Flickr user fouro, used under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 license" src="http://farm4.static.flickr.com/3477/3195262056_e8e4bf192c_m.jpg" alt="" width="180" height="240" /></a>Intellectual property, despite the name, doesn&#8217;t quite work like regular property. A look at <a class="zem_slink" title="Intellectual property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_property">intellectual property</a> <a class="zem_slink" title="Market" rel="wikipedia" href="http://en.wikipedia.org/wiki/Market">markets</a> highlight problems with a pure <a class="zem_slink" title="Free market" rel="wikipedia" href="http://en.wikipedia.org/wiki/Free_market">free-market</a> approach that aren&#8217;t necessarily visible with other markets. For example, <a class="zem_slink" title="Perfect competition" rel="wikipedia" href="http://en.wikipedia.org/wiki/Perfect_competition">perfectly competitive</a> markets require products that are perfect substitutes to best match buyers and sellers and to allow for market-based choices by buyers (and efficient determinations of price).</p> <p>But with intellectual property, even more than with traditional goods, one encounters dissimilar products that are not substitutable. Shubha Ghosh, in <a title="The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets" href="http://web.archive.org/web/20110305194756/http://lawreview.law.ucdavis.edu/issues/Vol40/Issue3/DavisVol40No3_Ghosh.pdf">The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets</a>, uses songs to illustrate this: one song is <em>both</em> the same as and different from another song, but they are not perfectly interchangeable. The same may be said for some chemical and industrial processes. As a result, the intellectual property market cannot allocate goods based on price alone, but also on other characteristics (like quality or type of product). This does not lead to efficient trades or distributional balance.</p> <p>In addition, intellectual property markets are deeply concerned with the licensing of rights, such as royalties and similar pricing arrangements. The complexity&#8211;with dimensions going beyond simple price&#8211;means often there is an asymmetry in information and strategic behavior by creators and users. The result is inefficient and undesirable distribution.</p> <p>As a final example, most analyses of ideal markets suggest that buyers and sellers will reach agreement, but such analyses typically ignore situations in which a customer&#8217;s life is at stake&#8211;leading to a tendency to pay any price to get a product. There is, notes Ghosh, &#8220;<a title="The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets" href="http://web.archive.org/web/20110305194756/http://lawreview.law.ucdavis.edu/issues/Vol40/Issue3/DavisVol40No3_Ghosh.pdf">something troubling</a>&#8221; about this situation. But it is not necessarily easy to select a better alternative to these market-oriented models&#8211;somehow justice needs to factor into the model, but how?</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=eebea791-11c3-4de0-a82a-a4e79251a329" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The new world of self-publishing: it’s not just for vanity anymore!" https://inpropriapersona.com/articles/the-new-world-of-self-publishing-its-not-just-for-vanity-anymore/ Tue, 15 Jun 2010 20:03:50 +0000 47f191ecbd9d56f176c29c16e0f890d6 <p><a href="http://www.flickr.com/photos/jblyberg/4505413539/"><img class="alignright" title="&quot;Evolution of Readers&quot; by Flickr user jblyberg, used under a Creative Commons Attribution 2.0 licnse" src="http://farm3.static.flickr.com/2770/4505413539_7b338e217e_m.jpg" alt="" width="240" height="159" /></a>The <a class="zem_slink" title="The Wall Street Journal" rel="homepage" href="http://www.wsj.com/">Wall Street Journal</a> has a great introduction to the new world of self-publishing:</p> <blockquote><p>Much as blogs have bitten into the news business and YouTube has challenged television, digital self-publishing is creating a powerful new niche in books that&amp;apos;s threatening the traditional industry. Once derided as &#8220;vanity&#8221; titles by the publishing establishment, self-published books suddenly are able to thrive by circumventing the establishment.</p> <p>via <a href="http://online.wsj.com/article/SB10001424052748704912004575253132121412028.html">Digital Self-Publishing Shakes Up Traditional Book Industry &#8211; WSJ.com</a>.</p></blockquote> <p>It&#8217;s finally possible to skip the traditional publishers altogether, publishing yourself (via <a class="zem_slink" title="Amazon Kindle" rel="homepage" href="http://www.amazon.com">Amazon</a>, for example), and get discovered by fans directly! Of course, you&#8217;re own your own with editing (contract it out? ask the significant other?) and advertising (social media, anyone?), and there are no advances on your sales.</p> <p>On the other hand, there&#8217;s no publisher telling you what you can and cannot say (but then again, there&#8217;s no publisher/editor telling you what you should say and shouldn&#8217;t say&#8230;), and no sending your manuscript in&#8211;and then never hearing back with more than a form letter.</p> <p>Instead, you write great stuff, put it up through Amazon, some fans discover you and&#8230; presto! You&#8217;re rich &amp; famous! Amazon&#8217;s discovery algorithms help with this (the more people read and like your work, the more often it gets recommended), but you still need to get that critical mass started (which is one thing a publisher can do for you).</p> <p>So this is great for fiction. I wonder if it has any possibilities for academic work? How would a department rate your self-published book in terms of tenure decisions? By number of copies sold? (But academic works never sell much.) Somehow, I suspect the academic world will be very, very slow to accept self-published works as &#8220;real&#8221; publications&#8230;</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.pbs.org/mediashift/2010/06/want-your-self-published-book-in-stores-weigh-the-options161.html">Want Your Self-Published Book in Stores? Weigh the Options</a> (pbs.org)</li> <li class="zemanta-article-ul-li"><a href="http://www.litopia.com/podcast/the-new-age-of-self-publishing/">The New Age Of Self-Publishing</a> (litopia.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3ed13a44-94da-41ac-a365-284e7d3fc021" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Why not an open-access Law.gov to access public legal materials?" https://inpropriapersona.com/articles/why-not-an-open-access-law-gov-to-access-public-legal-materials/ Thu, 03 Jun 2010 17:15:14 +0000 3a120f9a66df85c0536d9685af32cb1c <p><a href="http://www.flickr.com/photos/publicresourceorg/4463967227/"><img class="alignright" title="&quot;Law.Gov Gold Banner&quot; by Flickr user public.resource.org, used under a Creative Commons Attribution 2.0 license" src="http://farm5.static.flickr.com/4039/4463967227_ce948bd25f_m.jpg" alt="" width="240" height="152" /></a><a href="http://web.archive.org/web/20121012110819/http://www.chicagotribune.com/business/chi-ameetsachdev,0,6707848,bio.columnist">Ameet Sachdev</a> writes for the Chicago Tribune about <a class="zem_slink" title="Carl Malamud" rel="wikipedia" href="http://en.wikipedia.org/wiki/Carl_Malamud">Carl Malamud</a>&#8216;s vision of a new <a href="http://resource.org/law.gov/">Law.gov</a> that &#8220;would give public easier access to all kinds of documents&#8221; &#8212; and not force us to rely on LexisNexis and Westlaw for access to what is, after all, public material:</p> <blockquote><p>He&#8217;s boldly calling for an authenticated registry and repository of all primary legal materials in the United States available to the public at no cost. What does that include? Statutes, legal opinions, regulations and other rules that govern the daily lives of citizens, right down to permits issued by the local water district. Malamud has a name for his giant database, Law.gov.</p> <p>&#8220;We are a nation of laws, but the laws are not publicly available,&#8221; Malamud said recently on a visit to Chicago. &#8220;That&#8217;s a problem of democracy and justice.&#8221;</p> <p>via <a href="http://www.chicagotribune.com/business/ct-biz-0601-chicago-law-20100601,0,5879900,full.column">Time for free and easy access to legal information &#8211; chicagotribune.com</a>.</p></blockquote> <p>The idea, according to the <a href="http://resource.org/law.gov/">Public.Resource.Org description</a>, is to &#8220;provide bulk data and feeds &#8230; to use the raw materials of our democracy.&#8221; What are these raw materials? Basically, all materials that have the force of law, including:</p> <ul> <li>briefs and opinions from the judiciary;</li> <li>reports, hearings, and laws from the legislative branch;</li> <li>and regulations, audits, grants, and other materials from the executive branch.</li> </ul> <p>As an academic legal researcher currently disconnected from a law school, any access to a broader swath of legal information and materials is a win for me personally. I think access by everyone to such resources is also a good thing (even if those unfamiliar with reading and interpreting legal materials can often misinterpret what they are reading&#8230;).</p> <p>I would love to see such a thing extend beyond federal materials (which are reasonably accessible online now). Getting 50 states (and various territories) to cooperate with a central repository would be challenging &#8212; but brilliant. Hopefully Malamud and the various co-conveners can pull it off!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.nytimes.com/2010/03/15/technology/15fedflix.html">Volunteers Duplicate Federal Videos for an Online Archive</a> (nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20140304210845/http://radar.oreilly.com:80/2010/05/gov-20-week-in-review-4.html">Gov 2.0 Week in Review</a> (radar.oreilly.com)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20100528/0148409611.shtml">Another Lawsuit Questions Who Owns The Copyright On Legal Filings</a> (techdirt.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=7444c212-e4d8-45a2-b69d-79057c47efcf" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Looking forward to reading the new Adrian Johns book" https://inpropriapersona.com/articles/looking-forward-to-reading-the-new-adrian-johns-book/ Wed, 02 Jun 2010 23:22:27 +0000 48fddf0d93ec8dfd90eb4d71332076a4 <p><a href="http://www.flickr.com/photos/nevernameless/320619642/"><img class="alignright" title="&quot;The Record Industry's Piracy Law, Circa 1900&quot; by Flickr user Cameron Daigle, used under a Creative Commons Attribution-Noncommercial-No Derivative Works license" src="http://farm1.static.flickr.com/133/320619642_67c4fce549_m.jpg" alt="" width="240" height="180" /></a>So illustrious a source as the <a href="http://web.archive.org/web/20101106143817/https://www.eff.org/about/staff/fred-von-lohmann">Fred von Lohmann</a> at the <a href="http://www.eff.org">Electronic Frontier Foundation</a> recommends the <a href="http://www.amazon.com/gp/product/0226401189?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0226401189">new book</a> by Adrian Johns:</p> <blockquote><p>I&#8217;ve just finished Adrian Johns&#8217; 2009 book, <a href="http://www.amazon.com/gp/product/0226401189?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0226401189">Piracy: The Intellectual Property Wars from Gutenberg to Gates</a>, a 500+ page magnum opus stretching from the 1600s to the present. Johns is a noted University of Chicago historian, and his book is a fascinating and essential read for anyone interested in the history of the term &#8220;intellectual property&#8221; and development of the modern copyright and patent systems.</p> <p>via <a href="http://www.eff.org/deeplinks/2010/05/adrian-johns-i-piracy-i-essential-history-lessons">Required Reading: Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates | Electronic Frontier Foundation</a>.</p></blockquote> <p>Of particular interest:</p> <ul> <li>The story of the rise of the term &#8220;intellectual property&#8221; in the 1870s and its connection to patents.</li> <li>How the United States once  refusing to recognize the copyrights of foreign (mainly British) authors, and gained a reputation as a &#8220;pirate nation.&#8221;</li> <li>Early anti-piracy efforts in 1903, aimed at sheet music reprinters.</li> </ul> <p>Sounds like a good read!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://go.theregister.com/feed/www.theregister.co.uk/2010/03/15/historian_copyright_caution/">Historian warns against copyright-fight heavy hitting</a> (go.theregister.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2010/05/30/history-of-piracy-re.html">History of piracy, reviewed by EFF&#8217;s senior copyright lawyer</a> (boingboing.net)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d7452908-66d4-4701-8562-266cd5799a75" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Was medieval Islamic culture inhospitable to science?" https://inpropriapersona.com/articles/was-medieval-islamic-culture-inhospitable-to-science/ Tue, 01 Jun 2010 18:28:07 +0000 a92ee18f1a52ff617f66e8153dd39a93 <p><a href="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_216/v1514416973/les-figures-des-etoiles-fixes_mytt4j.jpg"><img class="alignright size-medium wp-image-3804" title="Les Figures des étoiles fixes by Al-Soufi, as featured by the Bibliothèque nationale de France" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_216/v1514416973/les-figures-des-etoiles-fixes_mytt4j.jpg" alt="" width="215" height="300" /></a>Myth #4 in <a id="static_txt_preview" href="http://www.amazon.com/gp/product/0674033272?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0674033272">Galileo Goes to Jail and Other Myths about Science and Religion</a> is <a href="http://hss.lums.edu.pk/fdetail.php?fid=38">Syed Nomanul Haq</a>&#8216;s article entitled &#8220;That Medieval Islamic Culture was Inhospitable to Science.&#8221; Haq is currently a visiting faculty member at <a href="http://www.lums.edu.pk/">Lahore University of Management Sciences</a>, in Pakistan. He also teaches at the <a class="zem_slink" title="University of Pennsylvania" href="http://maps.google.com/maps?ll=39.953885,-75.193048&amp;spn=0.01,0.01&amp;q=39.953885,-75.193048 (University%20of%20Pennsylvania)&amp;t=h" rel="geolocation">University of Pennsylvania</a>. His undergraduate degree is in applied physics, while his doctorate is in Graeco-Arabic intellectual history from the <a class="zem_slink" title="University of London" href="http://www.london.ac.uk/" rel="homepage">University of London</a>.</p> <p>The main point of his article is to combat the denigrating myth that credits the Greeks for &#8220;all that was noteworthy in <a class="zem_slink" title="Science in medieval Islam" href="http://en.wikipedia.org/wiki/Science_in_medieval_Islam" rel="wikipedia">Arabic science</a>&#8221; (note that the term &#8220;science&#8221; itself is potentially controversial, but I will keep it for the sake of its utility). In contrast, Haq argues that the Arabic translations of Greek texts, begun in earnest in the ninth century and heavily relied upon by European scholars beginning in the twelfth, were far more than simple restatements of Greek texts in the Arabic language. Haq says, instead, that the process was a creative act, and that is should be no surprise as such that Christian European scholars preferred the Arabic texts, even when the original Greek ones were available, because of the Arabic clarifications, improvements, and recasting.</p> <p>Haq also takes issue with the claim that <a class="zem_slink" title="Islam" href="http://en.wikipedia.org/wiki/Islam" rel="wikipedia">Islam</a>&#8216;s scientific scholars were marginalized by mainstream Muslim society, and that opposition by &#8220;orthodox&#8221; religious leaders like <a href="http://en.wikipedia.org/wiki/Al-Ghazali">Abu Hamid al-Ghazali</a> in the 12th century effectively ended scientific pursuits in the Islamic world. Instead, says Haq, Islamic science continued to flourish in an &#8220;open marketplace&#8221; of ideas until fading by the time of &#8220;the so-called scientific revolution in western Europe.&#8221;</p> <p>Absent from Haq&#8217;s article is much of an explanation of <em>why</em> Islamic translators sought to recast ancient Greek texts into Arabic, or why this pursuit was supported by the <a href="http://en.wikipedia.org/wiki/Abbasid">Abbasid</a> elites.</p> <p>Similarly, although Haq rejects the idea that Islamic theological and philosophical orthodoxy eventually led to the setting of Islam&#8217;s &#8220;scientific star,&#8221; he does not provide a robust alternative explanation, other than to point to &#8220;several severe reversals&#8221; experienced by political Islam, including the Christian <em><a href="http://en.wikipedia.org/wiki/Reconquista">reconquista</a></em> in Spain and <a href="http://en.wikipedia.org/wiki/Hulagu_Khan">Hulagu Khan</a>&#8216;s sacking of Baghdad and capture of Damascus in the thirteenth century.</p> <p>So if medieval Islamic culture was so conducive to scientific pursuits, why didn&#8217;t it last? And why shouldn&#8217;t contemporary Islamic society be equally supportive of science?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.huffingtonpost.com/sultan-sooud-alqassemi/1001-inventions-how-islam_b_524554.html">Sultan Sooud Al-Qassemi: &#8220;1001 Inventions&#8221;: How Islamic Scientific History Can Combat Today&#8217;s Extremists</a> (huffingtonpost.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/05/modern-islam-and-science-an-article-by-seyyed-hossein-nasr/">Modern Islam and science: an article by Seyyed Hossein Nasr</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b7a8d6e1-4d8c-47b1-8862-6000e4dc15a2" alt="" /></div> "Modern Islam and science: an article by Seyyed Hossein Nasr" https://inpropriapersona.com/articles/modern-islam-and-science-an-article-by-seyyed-hossein-nasr/ Wed, 26 May 2010 17:00:59 +0000 888758f65c0a1ea78ea9c4e2451d7673 <p><a href="http://www.flickr.com/photos/austinevan/3316195479/"><img class="alignright" title="&quot;Astrolabe, 18th century&quot; by Flickr user austinevan, used under a Creative Commons Attribution 2.0 license " src="http://farm4.static.flickr.com/3434/3316195479_cd520cc5a2_m.jpg" alt="" width="240" height="197" /></a><a href="http://en.wikipedia.org/wiki/Hossein_Nasr">Seyyed Hossein Nasr</a> is an Iranian scholar of comparative religion and philosophy at George Washington University. He has a masters degree in geology and geophysics, with a Ph.D. in the history of science from Harvard. (He received his PhD at age 25.)</p> <p>In &#8220;Islam and Science,&#8221; an article written for the <a id="static_txt_preview" href="http://www.amazon.com/gp/product/0199543658?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0199543658">Oxford Handbook of Religion and Science</a>, Nasr attempts to give a broad overview of the relationship of Islam to modern science and technology.</p> <p>First, he criticizes the approach of viewing Western science as a continuation of Islamic science, and therefore accepting it uncritically as fitting in well with Islamic thought. Nasr points out, however, that this perspective ignores the &#8220;agnostic science of nature&#8221; in the Western tradition, along with the &#8220;shift of paradigm&#8221; during the European <a href="http://en.wikipedia.org/wiki/Scientific_revolution">Scientific Revolution</a> that sharply distinguishes modern Western science from Islamic science.</p> <p>Second, in a related manner, he criticizes the acceptance of Western science as &#8220;value-free,&#8221; as opposed to contemporary perspectives of science &#8212; even in the West &#8212; of science as based &#8220;on a particular value system and a specific world-view.&#8221; The implicit value system of Western science, he suggests, needs instead to be criticized &#8220;from the Islamic point of view.&#8221;</p> <p>Importantly for Nasr is the question of the values and especially the ethics of science. He believes that &#8220;knowledge and its implications cannot evade ethical implications.&#8221; Modern science attempts to relegate alternative claims to knowledge, especially ethical claims and most especially knowledge based on religion, to &#8220;poetry, myth, or, even worse, superstition.&#8221;</p> <p>He suggests that Islam needs to realize that modern science is but &#8220;a science of nature,&#8221; not the science of nature. He posits a &#8220;positive Islamic critique of modern science&#8221; that &#8220;maintain[s] the traditional Islamic intellectual space &#8230; to which Islamic ethics corresponds, withing denying the legitimacy of modern sciences within their own confines.&#8221;</p> <p>Most importantly for Nasr, Muslims should not look to science to confirm metaphysical beliefs, but rather leave to science claims only about the natural world, not the supernatural one. He asks Muslims to be wary of &#8220;the prevalent view &#8230; from which God is simply absent, no matter how many modern scientists believe individually in him.&#8221; Modern Islamic scholars, he argues, unlike their traditional counterparts in the past, are &#8220;particularly bereft of responses&#8221; to the question of Transcendent Cause and the role of God. For him, older Islamic though had better answers to such questions, and this is why so many scholars are more interested in older relations between Islam and science than in contemporary ones.</p> <p>So what should be done? First, he wants Muslims to stop seeing themselves as inferior to Western science and technology, and to instead approach it as at least an equal. Again, he especially suggests that Islam and its ethics has a powerful rejoinder to Western science, which while it may put a man on the Moon still cannot stop teenagers from killing each other.</p> <p>Second, he recommends there be an in-depth study of traditional Islamic sources, from the Qur&#8217;an to the traditional works on the sciences and philosophy. The goal, he argues, is to create an &#8220;Islamic world-view and especially [an] Islamic concept of nature and the sciences of nature.&#8221; He wants scholars to do this within the framework of Islamic tradition, not through simple readings of decontextualized Qur&#8217;anic verses. Third, he suggests that more Muslim students should study &#8220;pure&#8221; sciences and not technology. He believes the Muslim world already has sufficient numbers of engineers, but that what it really needs are more scientists who can see beyond immediate utility.</p> <p>Fundamentally, Nasr believes that &#8220;[o]nly a science that issues from the source of all knowledge, from the Knower &#8230; and cultivated in an intellectual universe in which the spiritual and the ethical are not mere subjectivisms but fundamental features &#8230; can save humanity.&#8221; He suggests that Islamic science has the potential to not only create a &#8220;veritable Islamic science&#8221; that would help the Muslim world, but also to create a science for &#8220;those all over the globe who seek a science of nature and a technology which could help men and women to live at peace with themselves, with the natural environment, and above all, with that Divine Reality Who is the ontological source of both man and the cosmos.&#8221;</p> <p>A few questions to close up this synopsis of Nasr&#8217;s article:</p> <ul> <li>Which Islam and whose Islamic ethics does Nasr mean? (It&#8217;s not like Islam is one thing to all people.) Who decides?</li> <li>Does the distinction between &#8220;pure&#8221; science and technology hold up? Is it a useful distinction?</li> <li>Is there a whiff in Nasr&#8217;s writing of the &#8220;inferiority complex&#8221; he wants Islamic science to rid itself of?</li> <li>There is a certain resemblance in Nasr&#8217;s article to positions of some evangelical Christians &#8212; he is, for example, critical of Darwinian evolution (an &#8220;hypothesis parading as scientific fact&#8221;) and aligns himself with the Pope in regards to &#8220;protecting the unborn&#8221; &#8212; is this resemblance more than simply on the surface?</li> </ul> <p>These are questions I may pursue further in future reading and research, but if anyone has any thoughts, please share them.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.huffingtonpost.com/sultan-sooud-alqassemi/1001-inventions-how-islam_b_524554.html">Sultan Sooud Al-Qassemi: &#8220;1001 Inventions&#8221;: How Islamic Scientific History Can Combat Today&#8217;s Extremists</a> (huffingtonpost.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=def8602f-04e9-4ed1-aa97-09911d77a5b3" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Copyright and the public domain" https://inpropriapersona.com/articles/copyright-and-the-public-domain/ Sun, 23 May 2010 00:50:09 +0000 c38d02521b156444906bbbfdaa14acc0 <figure id="attachment_4459" style="max-width: 300px" class="wp-caption alignright"><a href="https://inpropriapersona.com/2010/05/copyright-and-the-public-domain/alice-in-wonderland/" rel="attachment wp-att-4459"><img class="size-medium wp-image-4459" title="Alice in Wonderland" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514417265/alice-in-wonderland_xitscj.jpg" alt="" width="300" height="300" /></a><figcaption class="wp-caption-text">Alice in Wonderland, from Google Books</figcaption></figure> <p><a href="http://uchicagolaw.typepad.com/faculty/picker_randy/">Randy Picker</a>has a fascinating post on the Faculty Blog of the University of Chicago&#8217;s law school of the copyright status of scans (by Google, for example) of public domain works. Does the effort of digitizing the work qualify as enough original effort to create a new copyright?</p> <blockquote><p>Where does that put Google (and Dover) with its digital scanners? We are starting to see skirmishes over photographs and scans of public domain works. The British National Portrait Gallery got into a <a href="http://news.bbc.co.uk/2/hi/8156268.stm">spat</a> with Wikipedia when Wikipedia uploaded onto its website digital images created by the NPG of public domain works in its collection. Actual caselaw is scarce, with <em>Bridgeman Art Library v. Corel Corp.</em>, a 1999 federal district court <a href="http://scholar.google.com/scholar_case?case=5068002142390131270">decision</a>, as a leading case. The court characterized the dispute as one over &#8220;&#8216;slavish copies&#8217; of public domain works of art&#8221; and concluded that such copies lacked the spark of originality and therefore could not be copyrighted. via <a href="http://uchicagolaw.typepad.com/faculty/2010/05/scanning-the-public-domain.html?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+typepad%2FUChicagoLawFaculty+%28The+University+of+Chicago+Law+School+Faculty+Blog%29">The University of Chicago Law School Faculty Blog: Scanning the Public Domain</a>.</p></blockquote> <p>In my (limited, provisional) opinion scanning works and putting them online is indeed essentially a &#8220;slavish copy.&#8221; Even the OCR of the text into a searchable format&#8211;which might well require effort and inventiveness&#8211;would not, in my mind, produce text that was any more copyrightable than the original public-domain work. It doesn&#8217;t matter how much effort Google or others invest&#8211;only <em>creative effort </em>is rewarded, <a href="https://inpropriapersona.com/2010/02/you-do-not-get-an-a-for-effort-with-copyright/">not effort generally</a>. Perhaps the manner in which Google displays the works might be protected intellectual property (but maybe not); certainly the software used to scan, OCR, and index the text has a good chance of receiving protection. But the text itself? <em>I don&#8217;t think so.</em>Picker points out that Google has tried to include language to try to protect their effort and limit the potential uses of the file:</p> <blockquote><p>That isn’t to say that an owner of such a digital file couldn’t try to control use of it through some means other than copyright. Go to Google Book Search and <a href="http://books.google.com/books?id=ddQIbwrBBd0C&amp;printsec=frontcover&amp;dq=alice+in+wonderland&amp;ei=jbX1S8H6KYTSM9WLhJcJ&amp;cd=1#v=onepage&amp;q&amp;f=false">download</a> Alice in Wonderland. The first page is from Google, not Lewis Carroll, and it offers a strong defense of the public domain: “Public domain books belong to the public and we are merely their custodians.” Then we get to the next word “nevertheless” and you can guess what follows: digitization is expensive &#8212; as indeed it is &#8212; so Google has imposed a series of limits on how the digital file can be used.</p></blockquote> <p>But whatever they try, I just don&#8217;t think legally  they&#8217;ve entered the realm of copyright &#8212; contract law, maybe, but not copyright. Of course, there&#8217;s ongoing efforts to strengthen copyright protection and extend it, but failing that &#8212; simply digitizing books, however much work it requires, simply shouldn&#8217;t meet the minimum level of <em>creativity</em> <a href="https://inpropriapersona.com/2010/02/you-do-not-get-an-a-for-effort-with-copyright/">required for copyright</a>.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.lockergnome.com/reflections/2010/04/09/you-cant-copyright-facts-i-didnt-know-that-did-you/">You Can&#8217;t Copyright Facts &#8211; I didn&#8217;t Know That, Did You?</a> (lockergnome.com)</li> <li class="zemanta-article-ul-li"><a href="http://opendotdotdot.blogspot.com/2010/05/how-they-stole-public-domain.html">How They Stole the Public Domain</a> (opendotdotdot.blogspot.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ca2b126f-c49f-456b-82e3-b48b7f1d1e88" alt="" /></div> "Popper, Kuhn, and Creationism" https://inpropriapersona.com/articles/popper-kuhn-and-creationism/ Wed, 19 May 2010 02:19:43 +0000 8a76b7cf3f159b6940e719e095da23d2 <p><a href="http://www.flickr.com/photos/amywatts/103235388/"><img class="alignright" title="&quot;Creationist car&quot; by Flickr user Amy Watts, used under a Creative Commons Attribution-Share Alike 2.0 license" src="http://farm1.static.flickr.com/27/103235388_280af07459_m.jpg" alt="" width="240" height="180" /></a>Since at least <a href="http://en.wikipedia.org/wiki/McLean_v._Arkansas">McLean v. Arkansas</a> in 1981, Creationists &#8212; <a class="zem_slink" title="Fundamentalist Christianity" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fundamentalist_Christianity">Christian fundamentalists</a> who oppose <a class="zem_slink" title="Evolution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Evolution">evolution</a> &#8212; have turned, intriguingly, to <a class="zem_slink" title="Philosophy of science" rel="wikipedia" href="http://en.wikipedia.org/wiki/Philosophy_of_science">philosophy of science</a> to try to justify the inclusion of Creationism alongside evolution in science classrooms.</p> <p>Looked at historically, though, the turn to philosophy of science for support is not a new move. In the nineteenth century, Creationists and fundamentalists looked to <a class="zem_slink" title="Francis Bacon" rel="wikipedia" href="http://en.wikipedia.org/wiki/Francis_Bacon">Francis Bacon</a> as their philosopher of choice. But it was a particular <em>use</em> of Bacon, one that applied a rather naive realist sense of evidence and empiricism.</p> <p>In the late twentieth and early twenty-first centuries, it is secular philosophers of science <a class="zem_slink" title="Karl Popper" rel="wikipedia" href="http://en.wikipedia.org/wiki/Karl_Popper">Karl Popper</a> and <a class="zem_slink" title="Thomas Samuel Kuhn" rel="wikipedia" href="http://en.wikipedia.org/wiki/Thomas_Samuel_Kuhn">Thomas Kuhn</a>, opponents in life, who Creationists have turned to in their attempt to make their ideas seem as &#8220;scientific&#8221; as possible. This use appears particularly ironic given that both Popper and Kuhn &#8212; for all their disagreements and disputes &#8212; were both concerned with differentiating pseudo-science from science.</p> <p>But is it an ironic use? Or is the use of these two theorists, so concerned as they were with defining the nature of science, perfectly natural given that this is exactly the debate Creationists &#8212; especially those in favor of &#8220;<a class="zem_slink" title="Intelligent design" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intelligent_design">Intelligent Design</a>&#8221; &#8212; are involved in? (Remember too, that the gold standard for mainstream evidence and trust today requires at least the nominal appearance of science and <a class="zem_slink" title="Scientific method" rel="wikipedia" href="http://en.wikipedia.org/wiki/Scientific_method">scientific methodology</a>.)</p> <p>Put in context, then, it seems perfectly <em>rational</em> and even expected that believers in alternative creation stories should turn to philosophers of science in an attempt to justify the why and how of their beliefs to outsiders.</p> <p>Generally, I have to wonder if their use selective, or if they rigorously and thoroughly apply Kuhn and Popper&#8217;s theories to both their own ideas and those of mainstream science? In other words, are they simply trying to &#8220;bring down&#8221; mainstream science, or are they using these theories to bring rigor to their own approaches? From my reading, their use does appear selective, and does appear to simply be focused on reducing mainstream science to their level (please correct me if I am wrong).</p> <p>Intelligent Design appears to me to be a &#8220;negative&#8221; research program, not a positive one. In other words, it defines itself in opposition to mainstream theories of evolution instead of presenting its own, falsifiable theories to explain the evidence. Noting this, <a href="http://www.amazon.com/gp/product/0743286391?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0743286391">Francis Collins points out</a> that evolutionary biology makes predictions, which then work (or don&#8217;t). As far as I can tell, Intelligent Design does not do this.</p> <p>Finally, why have Creationists decided on Popper and Kuhn (as opposed to, say, Quine or Putnam)? I can&#8217;t answer this as yet, but it&#8217;s an interesting question.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d8b6c0d8-7180-4aed-899d-c42b497d202f" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Google attorney dislikes ACTA too" https://inpropriapersona.com/news/2010/google-attorney-dislikes-acta-too/ Mon, 10 May 2010 06:42:55 +0000 79bd0cdaedb24e967ccc16ac4f2a84f4 <p><a href="http://www.flickr.com/photos/8981778@N06/4131418047"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="&quot;Stop ACTA!&quot; by Flickr user k.l.macke, used under a Creative Commons Attribution-Noncommercial 2.0 license." src="http://farm3.static.flickr.com/2609/4131418047_e339866649_m.jpg" border="0" alt="Stop ACTA!" hspace="5" width="240" height="240" /></a>The still-in-draft <a class="zem_slink" title="Anti-Counterfeiting Trade Agreement" rel="wikipedia" href="http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement">Anti-Counterfeiting Trade Agreement</a>, beloved of some, is hated by many &#8212; including <a class="zem_slink" title="Google" rel="homepage" href="http://google.com">Google</a>, apparently:</p> <blockquote><p>An attorney for Google slammed a controversial intellectual property treaty on Friday, saying it has &#8220;metastasized&#8221; from a proposal to address border security and counterfeit goods to an international legal framework sweeping in copyright and the Internet.</p> <p>The Anti-Counterfeiting Trade Agreement, or ACTA, is &#8220;something that has grown in the shadows, Gollum-like,&#8221; without public scrutiny, Daphne Keller, a senior policy counsel in Mountain View, Calif., said at a conference at Stanford University.</p> <p>via <a href="http://news.cnet.com/8301-13578_3-20004450-38.html">Google attorney slams ACTA copyright treaty | Politics and Law &#8211; CNET News</a>.</p></blockquote> <p>I have to agree this Google attorney. I don&#8217;t like ACTA much, either, and don&#8217;t think it&#8217;s much of an improvement on the current, uncoordinated approach to copyright.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://yro.slashdot.org/story/10/05/08/193258/Google-Attorney-Slams-ACTA-Copyright-Treaty?from=rss">Google Attorney Slams ACTA Copyright Treaty</a> (yro.slashdot.org)</li> <li class="zemanta-article-ul-li"><a href="http://www.eff.org/deeplinks/2010/04/eff-analysis-officially-released-acta-text">Preliminary Analysis of the Officially Released ACTA Text</a> (eff.org)</li> </ul> "Should mandatory open access be extended to all federally funded research?" https://inpropriapersona.com/articles/should-mandatory-open-access-be-extended-to-all-federally-funded-research/ Sat, 08 May 2010 05:08:41 +0000 ad30a30d835eaee0c0400e985a7796b8 <p><a href="http://www.flickr.com/photos/emdot/56156364/"><img class="alignright" title="&quot;for squirrels and chipmunks, practice makes perfect&quot; by Flickr user emdot, used under a Creative Commons Attribution 2.0 license " src="http://farm1.static.flickr.com/33/56156364_f3723ffcc7_b.jpg" alt="" width="183" height="240" /></a>I think this would be a great idea:</p> <blockquote><p>Although there have been sporadic attempts to reverse the policy, it has been considered so successful that the US Office of Science and Technology Policy requested public input on an extension of the rules to all federally funded research. Now, a consortium of US research institutions is putting its weight behind an effort to turn the potential OSTP policy into law.</p> <p>via <a href="http://arstechnica.com/tech-policy/news/2010/05/universities-congress-push-open-access-research-law.ars">Universities, Congress push Open Access Research law</a>.</p></blockquote> <p>Open access is not without its challenges (note: putting publishers out of business is not one of them), but it&#8217;s incredibly useful. I&#8217;d love to see this kind of policy extended beyond science and into other fields as well (although most other fields do not receive the kind of federal money that science does).</p> "The FCC re-classifies in response to Comcast" https://inpropriapersona.com/articles/the-fcc-re-classifies-in-response-to-comcast/ Thu, 06 May 2010 01:48:34 +0000 147494d863ddcbd4af1d0cf5a6e3eb4b <p><a href="http://www.flickr.com/photos/28208534@N07/4177700814"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="&quot;Coax 1 - Light&quot; by Flickr user mikemol, used under a Creative Commons Attribution 2.0 license " src="http://farm3.static.flickr.com/2558/4177700814_2218bd0286.jpg" border="0" alt="Coax 1 - Light" hspace="5" width="240" height="180" /></a>Last month, Comcast <a href="https://inpropriapersona.com/2010/04/net-neutrality-and-deference-to-the-fcc/">won its appeal in a federal appeals court</a> in D.C. against the FCC&#8217;s attempt to require network neutrality. As predicted by some, the FCC is proceeding with plans to reclassify broadband providers, and thus escape the ruling entirely:</p> <blockquote><p>Federal Communications Commission Chairman Julius Genachowski has decided to reregulate Internet lines to protect net neutrality, siding with consumer groups and Internet companies worried that Internet providers have too much power.</p> <p>via <a href="http://online.wsj.com/article/SB10001424052748703961104575226583645448758.html#dummy">FCC to Overhaul Regulation of Internet Lines &#8211; WSJ.com</a>.</p></blockquote> <p>Is this good for consumers? Good for business? We&#8217;ll have to see. At the very least, it means that Obama&#8217;s FCC is not interested in simply maintaining the <em>status quo.</em></p> "Causation, faith, and intelligent design" https://inpropriapersona.com/articles/causation-faith-and-intelligent-design/ Mon, 03 May 2010 22:17:44 +0000 a7e2479f81325f7fedb62243beaa7344 <p><a href="http://www.flickr.com/photos/41894198135@N01/1036693826"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="&quot;dinosaur w/saddle&quot; by Flickr user williac, used under a Creative Commons Attribution 2.0 license" src="http://farm2.static.flickr.com/1086/1036693826_26bd7bdcd2.jpg" border="0" alt="dinosaur w/saddle" hspace="5" width="240" height="180" /></a>There is a philosophical thesis (<a href="http://en.wikipedia.org/wiki/Duhem%E2%80%93Quine_thesis">attributed jointly to Pierre Duhem and Willard Quine</a>) that, when simplified, explains how a given set of facts can produce more than one apparently true conclusion: essentially, different background assumptions lead to different conclusions. A related concept is known as <a href="http://en.wikipedia.org/wiki/Underdetermination">underdetermination</a>: that a given set of evidence can be explained by more than one&#8211;potentially conflicting&#8211;theory.</p> <p>One pertinent example: most biologists look at the diversity of species and say that <a class="zem_slink" title="Natural selection" rel="wikipedia" href="http://en.wikipedia.org/wiki/Natural_selection">evolution by natural selection</a> (with at least a hint of randomness) is the best explanation, whereas believers in Intelligent Design see God&#8217;s hand at work. Given a certain view of available evidence, both explanations might be <em>possible </em>(especially if an all-powerful God simply creates everything&#8211;including fossils&#8211;<em>in situ</em>).</p> <p>So how can we resolve this problem whereby a set of facts can justifiably be argued to support multiple potential theories?</p> <p>One approach is to limit ourselves to certain <em>kinds</em> of theories as potential explanations: science tends to allow for only theories that are potentially testable, verifiable, falsifiable, etc. Most scientists say&#8211;despite arguments to the contrary&#8211;that the existence of a divine presence guiding evolution is simply out of bounds for scientific inquiry. It&#8217;s a matter for faith, not empirical inquiry; it&#8217;s religion, not science.</p> <p><a href="http://www.amazon.com/Gods-Universe-Owen-Gingerich/dp/0674023706%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0674023706"><img class="alignleft" src="http://ecx.images-amazon.com/images/I/41VSmiixTvL._SL160_.jpg" alt="" width="98" height="160" /></a>Another approach, favored by Owen Gingerich, astronomer and author of<a href="http://www.amazon.com/Gods-Universe-Owen-Gingerich/dp/0674023706"> </a><em><a href="http://www.amazon.com/Gods-Universe-Owen-Gingerich/dp/0674023706">God&#8217;s Universe</a>, </em>turns to <a class="zem_slink" title="Aristotle" rel="wikipedia" href="http://en.wikipedia.org/wiki/Aristotle">Aristotle</a> to help differentiate these two kinds of explanation. Put in <a href="http://www.seop.leeds.ac.uk/entries/aristotle-causality/">Aristotelean terms</a>, faith could be seen as a search for &#8220;final&#8221; causes, while traditional science could be said to stick instead to &#8220;efficient&#8221; causes. There is thus no conflict between science and religion&#8211;and no worries about underdetermination traceable to this conflict&#8211;since each explains different things.</p> <p>Gingerich looks to <a class="zem_slink" title="Blaise Pascal" rel="wikipedia" href="http://en.wikipedia.org/wiki/Blaise_Pascal">Blaise Pascal</a>&#8216;s notion that &#8220;some things only the heart knows&#8221; to explain this idea and justify his belief in (small case) &#8220;intelligent design.&#8221; Since science cannot know or determine certain truths (final causes, in Aristotelian terms), we can freely posit a (distant) intelligent designer without worrying about stepping on scientific concepts of proof. In essence, two truths become simultaneously possible, because they occupy different domains of truth.</p> <p class="sidebox">The law is somewhat similarly concerned with <a href="http://en.wikipedia.org/wiki/Causation_(law)">causality</a>. But the law is not concerned with science&#8217;s version of &#8220;efficient&#8221; causes, nor is the law looking for &#8220;final&#8221; causes in the metaphysical sense. Instead, legal analyses look to &#8220;but-for&#8221; causation and speak of &#8220;proximate&#8221; cause in a search for limited, but specific, legal culpability. The point, though, is similar to that advocated by Gingerich: to limit the scope and breadth of various theories of causation. In other words, the idea is to restrict potential problems of underdetermination.</p> <p>Intelligent Design (not Creationism, and not the lower-case &#8220;intelligent design&#8221; of Gingerich), on the other hand, believes that science <em>can</em> be used to access the truth of an intelligent creator, and that this search <em>is</em> scientific.</p> <p>Creationism, on the other hand, tends to reject science more firmly. It inherits from a tradition of the literal exegesis of scripture used, for example, in the 16th century. 16th-century exegesis is related to but not identical to today&#8217;s Biblical <a class="zem_slink" title="Biblical literalism" rel="wikipedia" href="http://en.wikipedia.org/wiki/Biblical_literalism">literalism</a>. After all, bringing in a passage of scripture today is no longer a means of shutting down debate.</p> <p>So how did Copernicans in the 16th century deal with the issue, given the power of literalism at the time? They argued that perhaps scripture itself underdetermines potential explanations&#8211;even if it can shut down <em>blatantly</em> conflicting theories.</p> <p>Thus, for example, <a class="zem_slink" title="Johannes Kepler" rel="wikipedia" href="http://en.wikipedia.org/wiki/Johannes_Kepler">Johannes Kepler</a> tried an accommodation approach with literalism. He maintained that God&#8211;in order to be understood by normal people&#8211;caused the Bible to be written in ordinary language. This is why there are no discussions of epicycles (or DNA, for that matter) in the Bible. The Bible thus accomodates ordinary folk with a different, non-scientific vocabulary that, if read correctly, <em>does not conflict with science</em>.</p> <p>Of course, many&#8211;most?&#8211;of today&#8217;s scientists simply step outside of the argument, and simply point to materialist, naturalistic explanations as being all that is necessary, and certainly as the only valid scientific theories. Why? <em>Because they work.</em></p> <p>If all of these approaches to dealing with underdetermination are dissatisfying you, and you can&#8217;t accept naturalism, then there is always the choice to go to <em>absolute</em> knowledge, as <a href="http://en.wikipedia.org/wiki/David_Bloor">David Bloor</a> reminds us: if the Pope says it&#8217;s true, then no doubt exists, and we escape the problem of underdetermination and uncertainty.</p> <p><em>This post is based on discussion in a graduate seminar on science and religion on Monday, April 27, 2010.</em></p> "Some commonalities of pro- and anti-vaccination rhetoric" https://inpropriapersona.com/articles/some-commonalities-of-pro-and-anti-vaccination-rhetoric/ Sat, 01 May 2010 01:21:45 +0000 06306a3f471542562bd2fad3f63f1cf2 <p><a href="http://www.flickr.com/photos/leahbennett/3324138060/"><img class="alignright" title="&quot;Vaccination&quot; by Flickr user leahb, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm4.static.flickr.com/3664/3324138060_7c1293247e_b.jpg" alt="" width="240" height="192" /></a>Within the context of the contemporary vaccination debate, neither side has a monopoly on a particular kind of argument.</p> <p>As just one example, many vaccination opponents focus on potential conflicts of interest by researchers, especially when researchers may be influenced by pharmaceutical companies and the potential profits such companies may enjoy through the use&#8211;especially the mandated use&#8211;of vaccines they manufacture.</p> <p>These &#8220;<a href="http://pus.sagepub.com/cgi/content/abstract/2/4/417">[a]ccusations of having engaged in mercenary practices</a>&#8221; are intended to reduce the authority of scientific experts. Many anti-vaccine Web sites, according to a <a href="http://www.ncbi.nlm.nih.gov/pubmed/12089115 ">2002 study</a> published in Archives of Disease in Childhood, take the accusation further, casting doctors and scientists as either &#8220;<a href="http://www.ncbi.nlm.nih.gov/pubmed/12089115">willing conspirators cashing in on the vaccine `fraud&#8217; or pawns of a shadowy vaccine combine</a>.&#8221;</p> <p>Conflict-of-interest criticisms are also used by proponents of vaccination when they evaluate and review claims. For example, critics of vaccine opponent and scientist <a class="zem_slink" title="Andrew Wakefield" href="http://en.wikipedia.org/wiki/Andrew_Wakefield" rel="wikipedia">Andrew Wakefield</a>, author of a now-retracted study published in <em><a class="zem_slink" title="The Lancet" href="http://www.thelancet.com/" rel="homepage">The Lancet</a>,</em> accuse him of being &#8220;<a href="http://www.sciencebasedmedicine.org/?p=3660 ">paid big bucks by trial lawyers</a>&#8221; and of not revealing this &#8220;<a href="http://www.sciencebasedmedicine.org/?p=3660">conflict of interest</a>.&#8221;</p> <p style="text-align: left;">Most proponents of vaccination see themselves, in the words of <a class="zem_slink" title="Paul Offit" href="http://en.wikipedia.org/wiki/Paul_Offit" rel="wikipedia">Dr. Paul Offit</a>, as &#8220;<a href="http://www.wired.com/magazine/2009/10/ff_waronscience/." rel="nofollow">science advocate[s]</a>,&#8221; not &#8220;<a href="http://www.wired.com/magazine/2009/10/ff_waronscience/" rel="nofollow">vaccine advocate[s]</a>.&#8221; A major critique they make of vaccination opponents is that they ignore or distort science, equate correlation with causation, or fasten on preliminary or poorly-conducted studies as the final word on a subject.</p> <p>Current opponents of vaccination also seek to align themselves on the side of science. Even as they criticize the mainstream scientific perspective on vaccination, nonetheless, &#8220;<a href="http://pus.sagepub.com/cgi/content/abstract/2/4/417">in what appears as a paradox, the appeal to scientific expertise</a>&#8221; remains:</p> <blockquote><p>In the context of a controversy, any group which attempts to present its case and to participate in the critical assessment of alternative viewpoints without appealing to any scientific expertise puts itself in a very vulnerable position.</p></blockquote> <p>Despite this appeal to science, expertise in the vaccination debates remains a contested issue. Sharon Kaufman, a professor of medical anthropology at the <a class="zem_slink" title="University of California, San Francisco" href="http://maps.google.com/maps?ll=37.7633194444,-122.458538889&amp;spn=0.01,0.01&amp;q=37.7633194444,-122.458538889 (University%20of%20California%2C%20San%20Francisco)&amp;t=h" rel="geolocation">University of California, San Francisco</a>, says that with the proliferation of &#8220;experts&#8221; on the Internet, &#8220;<a href="http://www.ncbi.nlm.nih.gov/pubmed/19478850">many parents see even the most respected vaccine experts&#8217; perspective on the issue as just one more opinion</a>.&#8221;</p> <p>Vaccination opponents often combine references to science with a powerful emotional hook. Citing the 2002 study mentioned earlier, Liza Gross writes, &#8220;<a href="http://www.ncbi.nlm.nih.gov/pubmed/19478850 ">The bulk of antivaccination Web sites present themselves as legitimate sources of scientific information, using pseudoscientific claims and emotional appeals</a>.&#8221;</p> <p>The <a href="http://www.nvic.org" rel="nofollow">National Vaccintion Information Center</a> site, for example, combines a &#8220;Memorial to Vaccine Victims&#8221; with a &#8220;Doctor&#8217;s Corner&#8221; containing materials written by physicians.  <a href="http://www.ncbi.nlm.nih.gov/pubmed/19478850 ">Gross adds</a> that, on many anti-vaccination Web sites, intuitive views about vaccines were elevated above &#8220;cold, analytical science,&#8221; and accounts of children &#8220;maimed or killed by vaccines&#8221; were common&#8211;a finding that may help explain why those who advocate immunization receive death threats.</p> <p>This combination of science plus emotion&#8211;validating the intuition of parents while providing alternative expertise to back up their beliefs&#8211;is a compelling one.</p> <p>Scientific knowledge&#8211;or, at least the appearance of such knowledge&#8211;remains key on anti-vaccination Web sites. This is visible in &#8220;informed choice&#8221; rhetoric, for example, and is a key theme of the <a href="http://www.nvic.org" rel="nofollow">NVIC</a> site.  It is also, perhaps obviously, a key component of pro-vaccination rhetoric as well.</p> <p><em>For more specific comparisons of pro- and anti-vaccination Web sites, see <a href="http://ssrn.com/paper=1579525">Markers of Trust: How Pro- and Anti-Vaccination Web Sites Make Their Case</a> on SSRN.</em></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.sciencebasedmedicine.org/?p=4259">J.B. Handley and the anti-vaccine movement: Gloating over the decline in confidence among parents about vaccines</a> (sciencebasedmedicine.org)</li> <li class="zemanta-article-ul-li"><a href="http://leftbrainrightbrain.co.uk/2010/04/pbs-frontline-the-vaccine-war/">PBS Frontline: The Vaccine War</a> (leftbrainrightbrain.co.uk)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20130523024658/http://www.lewrockwell.com/orig5/mercola39.1.html">Contaminated Childhood Vaccines</a> (lewrockwell.com)</li> </ul> "The Stored Communications Act and you" https://inpropriapersona.com/articles/the-stored-communications-act-and-you/ Sat, 24 Apr 2010 02:56:55 +0000 e7685422935805b31c3d464204a1ee63 <p><a href="http://www.flickr.com/photos/esparta/1609874001/"><img class="alignright" title="&quot;email&quot; by Flickr user Esparta, used under a Creative Commons Attribution 2.0 license." src="http://farm3.static.flickr.com/2128/1609874001_8c19b62060_m.jpg" alt="" width="240" height="160" /></a>It&#8217;s always good to remember that storing your email on someone else&#8217;s server is a potential problem:</p> <blockquote><p><a class="zem_slink" title="Cloud Computing" rel="wikinvest" href="http://www.wikinvest.com/concept/Cloud_Computing">Cloud software</a> like Gmail and e-mail protocols like <a class="zem_slink" title="Internet Message Access Protocol" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet_Message_Access_Protocol">IMAP</a> make it easy to access your e-mail from any computer. They are also, unfortunately, subject to the <a class="zem_slink" title="Stored Communications Act" rel="wikipedia" href="http://en.wikipedia.org/wiki/Stored_Communications_Act">Stored Communications Act</a>. The language of the Stored Communications Act is so broad that it seems to apply to any e-mail server (including Exchange servers), whether it is in your office or Google’s data center.</p> <p>via <a href="http://lawyerist.com/is-e-mail-secure/?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+solosmalltech+%28Lawyerist%29&amp;utm_content=Google+Reader">Is E-mail Secure?</a>.</p></blockquote> <p>But the Stored Communications Act, as I read it, <em>does not</em> allow easy access to <a class="zem_slink" title="Message transfer agent" rel="wikipedia" href="http://en.wikipedia.org/wiki/Message_transfer_agent">email server</a>&#8216;s &#8220;in your office&#8221;&#8211;the physical access required generally requires a warrant, whereas it&#8217;s usually the 3rd-party nature of storing materials with someone else that makes access by the government easier. Your office IT department is simply not an ISP under the statute, since it does not provide services to the public.</p> <p>So while, yes, the SCA is a concern, and storing your messages in the cloud is a potential issue if you are in a field like law (where client privacy is critical). But it does not require you to download all your messages to your laptop to get <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> protections. Having your company store them is good enough to protect corporate information (i.e., it&#8217;s good enough for your company&#8211;they could always consent to a search even if you, as an individual, don&#8217;t want it).</p> <p>So, to summarize, if you as an individual want maximum protection from government search, keep everything on your own computer. Corporate materials are safe on a corporation-owned server&#8211;but if you have personally private information, that <em>might</em> be subject to the whims of your corporation. Unfortunately, storing your emails on your <a class="zem_slink" title="Internet service provider" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet_service_provider">ISPs</a> server&#8211;or in &#8220;the cloud,&#8221; as with Gmail&#8211;offers the least protection, since the government doesn&#8217;t need <a class="zem_slink" title="Search warrant" rel="wikipedia" href="http://en.wikipedia.org/wiki/Search_warrant">search warrant</a> to get access.</p> <p>Hopefully, this will change in the future once the law adapts to current technology&#8211;but don&#8217;t hold your breath.</p> <p>For more about the Stored Communications Act, see Orin Kerr&#8217;s analysis on SSRN: <a href="http://ssrn.com/abstract=421860">A User&#8217;s Guide to the Stored Communications Act, and a Legislator&#8217;s Guide to Amending It</a></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.wired.com/threatlevel/2010/04/emailprivacy-2/">Yahoo Beats Feds in E-Mail Privacy Battle</a> (wired.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.dailykos.com/storyonly/2010/4/19/858782/-SCOTUS-Hears-Argument-On-Texting-Privacy">SCOTUS Hears Argument On Texting Privacy</a> (dailykos.com)</li> </ul> "The splintering of the Internet is not a new phenomenon" https://inpropriapersona.com/articles/the-splintering-of-the-internet-is-not-a-new-phenomenon/ Tue, 20 Apr 2010 16:30:44 +0000 79f8841610350918308458e22acd2e8b <p><a href="http://www.flickr.com/photos/teflon/3190769121/"><img class="alignright" title="&quot;The Internet&quot; by Flickr user Martin Deutsch, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm4.static.flickr.com/3533/3190769121_ac054a14d9_m.jpg" alt="" width="240" height="143" /></a>There has been increasing discussion around the concept of the &#8220;splinternet&#8221;: the idea that proprietary devices or sites like the iPad or <a class="zem_slink" title="Facebook" rel="homepage" href="http://facebook.com">Facebook</a> are acting to fracture the old, unified Web into discrete, fragmented, and self-contained units. Josh Bernoff, for example, writes:</p> <blockquote><p>Web marketing has grown since 1995, based on the idea that everything is connected. Click-throughs, ad networks, analytics, search-engine optimization &#8212; it all works because the Web is standardized. Google works because the Web is standardized.</p> <p>Not any more. Each new device has its own ad networks, format, and technology. Each new social site has its login and many hide content from search engines.</p> <p>We call this new world the Splinternet (with a nod to Doc Searls and Rich Tehrani, who used the term before us with a somewhat different meaning). It will splinter the Web as a unified system. The golden age has lasted 15 years. Like all golden ages, it lasted so long we thought it would last forever. But the end is in sight.</p> <p>Here&#8217;s what not to do: panic and try to unify things again. The shattering cannot be undone.</p> <p>via <a href="http://forrester.typepad.com/groundswell/2010/01/the-splinternet-means-the-end-of-the-webs-golden-age.html">The Splinternet means the end of the Web&#8217;s golden age</a>.</p></blockquote> <p>I do not disagree with his advice (don&#8217;t panic!), but I do disagree with the widespread premise that somehow today&#8217;s <a class="zem_slink" title="Internet" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet">Internet</a> consists of more fragmentation that during the &#8220;golden age&#8221; of the World Wide Web.</p> <p>First, the &#8220;golden age&#8221; Web was no more unified than today&#8217;s version. The fragmented players were different, but the fundamental difficulties were quite similar. Where once we had <a class="zem_slink" title="AOL" rel="homepage" href="http://www.aol.com/">AOL</a> and Compuserve, now we have Facebook and <a class="zem_slink" title="LinkedIn" rel="homepage" href="http://www.linkedin.com">LinkedIn</a>. Previously, <a class="zem_slink" title="Internet Explorer" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet_Explorer">Internet Explorer</a> and its ecosystem of technology provided incompatible approaches to accessing data and sites. Users of, for example, Netscape on Linux were simply excluded from access to IE-only content, or saw a much degraded view of certain parts of the Internet. Video and sound content required custom plug-ins that would run on certain platforms and not others.</p> <p>Second, the fragmentation is simply not as great as Bernoff and others maintain. 10 years ago I had to write custom (brittle) Web scrapers to pull in data from external sites. Today, I can use <a href="http://en.wikipedia.org/wiki/RSS">RSS</a>, XML-RPC, or other &#8220;glue&#8221; standards to reliable access data on 3rd-party sites. Facebook may try to control its world, but I can access it from pretty much any device with a browser, from an <a class="zem_slink" title="iPhone 3G" rel="homepage" href="http://www.apple.com/iphone">iPhone</a> to a home machine running Windows 7. Yes, it may look different (but isn&#8217;t Flash really just a flashback to the bad old days of proprietary plugins?), but the core is there for every visitor. Plus, while I can&#8217;t pull out every bit of data (friends&#8230;) from Facebook, I can get an RSS feed of status updates that I can do all sorts of programmatic stuff with.</p> <p>In short, the &#8220;golden age&#8221; was hardly golden, and today&#8217;s Web is, if anything, <em>better</em> than it used to be in terms of interconnectivity. Certainly it&#8217;s important to recognize fragmentation issues today, but let&#8217;s not pretend it&#8217;s a new problem.</p> "My first look at historical shifts in anti-vaccination rhetoric" https://inpropriapersona.com/articles/my-first-look-at-historical-shifts-in-anti-vaccination-rhetoric/ Sun, 18 Apr 2010 17:00:34 +0000 39de631012c1046d27304e0dbaeab379 <p><a href="http://www.flickr.com/photos/library_of_congress/2179909780/"><img class="alignright" title="Dr. Schreiber of San Augustine giving a typhoid innoculation at a rural school, San Augustine County, Texas (from the Library of Congress)" src="http://farm3.static.flickr.com/2243/2179909780_c263ed2455_m.jpg" alt="" width="240" height="185" /></a>There is a long history of opposition to vaccination, opposition that dates back to its earliest uses in Europe and North America to fight smallpox. Opponents have made claims ranging from accusations that <a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">vaccination interferes with &#8220;God&#8217;s will&#8221;</a> to claims that it actually <a href="http://www.ncbi.nlm.nih.gov/pubmed/15798112">contributed to the spread of smallpox instead of preventing it</a>.</p> <p>The anti-vaccinationist movements of the late nineteenth and early twentieth centuries tended to incorporate opposition to vaccination within a larger program of opposition to government actions. In contrast, contemporary opponents of vaccination tend, according to Michael Fitzpatrick, to focus on particular vaccines, and &#8220;<a href="http://jrsm.rsmjournals.com/cgi/content/full/98/8/384">have no objection to state intervention in any other areas</a>.&#8221; Many express &#8220;<a href="http://jrsm.rsmjournals.com/cgi/content/full/98/8/384">their concerns about vaccine safety with reference to mainstream medical science</a>.&#8221; <a href="http://jrsm.rsmjournals.com/cgi/content/full/98/8/384">Fitzpatrick continues</a> to distinguish anti-vaccinationists of the two eras:</p> <blockquote><p>Indeed some of the most prominent campaigns are careful to point out that they are not &#8220;anti-vaccine&#8221; but simply concerned to promote &#8220;informed choice&#8221; by parents. However disingenuous this posture may be, it reflects the general defensiveness of current campaigns and the limited scope of their resistance to medical authority. In contrast with the collective campaigns of the past, today&#8217;s have a strongly individualistic character. Rather than demanding the abandonment of the national immunization programme, they merely request the choice of mercury-free vaccines, or single agents rather than MMR [the measles-mumps-rubella vaccine].</p></blockquote> <p>While Fitzpatrick makes a useful distinction, not all vaccination opponents are so &#8220;defensive&#8221; as to &#8220;merely request&#8221; very limited changes to current vaccination approaches. Barbara Loe Fisher, co-founder of the <a href="http://www.nvic.org" rel="nofollow">National Vaccine Information Center</a> (NVIC), for example, situates her position in terms of &#8220;freedom and the human right to make informed, voluntary medical decisions&#8221; and attacks the &#8220;medical community [for being] committed to the utilitarian rationale that a minority of human beings can be sacrificed in service to the majority.&#8221; This is a much broader assault on vaccination than &#8220;merely request[ing] the choice of mercury-free vaccines,&#8221; and suggests that, even if anti-vaccination activists may choose to phrase their arguments in more limited terms, their beliefs often remain broadly aligned with ideas of personal liberty that similarly motivated their predecessors.</p> <p>What other changes have there been to anti-vaccination rhetoric and beliefs over the last 150 years?</p> "Science and Protestantism: why is evolution a target?" https://inpropriapersona.com/articles/science-and-protestantism-why-is-evolution-a-target/ Wed, 14 Apr 2010 22:18:12 +0000 599b1400e51a87cf47413f6d527735bd <p><a href="http://www.flickr.com/photos/71092566@N00/1654989390"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="&quot;The Ossified Ark&quot; by Flickr user seriykotik1970, used under a Creative Commons Attribution-Noncommercial 2.0 license" src="http://farm3.static.flickr.com/2164/1654989390_183641a0c2_m.jpg" alt="The Ossified Ark" width="240" height="240" border="0" hspace="5" /></a>Robert Merton <a href="http://en.wikipedia.org/wiki/Merton_Thesis">once postulated</a> that the flourishing of <a class="zem_slink" title="Puritan" href="http://en.wikipedia.org/wiki/Puritan" rel="wikipedia">Puritanism</a> directly led to the growth of modern science, rather like <a class="zem_slink" title="Max Weber" href="http://en.wikipedia.org/wiki/Max_Weber" rel="wikipedia">Max Weber</a> maintained that the <a href="http://en.wikipedia.org/wiki/Protestant_ethic">Protestant ethic</a> fostered the growth of capitalism.</p> <p>Why then is it that modern <a href="http://en.wikipedia.org/wiki/Evangelicalism">Protestant evangelicals</a> appear to struggle with accepting science today? Why does this struggle emerge especially around biology, particularly <a class="zem_slink" title="Evolution" href="http://en.wikipedia.org/wiki/Evolution" rel="wikipedia">evolution</a>? And why have many evangelicals turned to approaches like &#8220;<a class="zem_slink" title="Intelligent design" href="http://en.wikipedia.org/wiki/Intelligent_design" rel="wikipedia">Intelligent Design</a>,&#8221; which instead of replacing science with religion, instead seeks to co-opt science within terms acceptable to Protestant evangelicalism?</p> <p>These are the questions I was considering today while discussing <a class="zem_slink" title="Sociology" href="http://en.wikipedia.org/wiki/Sociology" rel="wikipedia">sociology</a> and science, and considering how the nature of certain kinds of evidence and theory influences its acceptance and utility by different social groups. (For more, see, <em>e.g.</em>, <a href="http://scholar.google.com/scholar?cluster=12546024777753251314&amp;hl=en&amp;as_sdt=2000">Religion and Science: Beyond the Epistemological Conflict Narrative</a>, by John Evans and Michael Evans.)</p> <p>Let&#8217;s consider <a href="http://en.wikipedia.org/wiki/Fundamentalist_Christianity">Protestant fundamentalists</a>, who generally consider the Bible <a href="http://en.wikipedia.org/wiki/Biblical_literalism">literally true</a> (despite problems of translation, changes in fundamentalist interpretations over time, and other difficulties). This is the group, one would expect, who might well have the most objections to science, and indeed when it comes to geological sciences and evolution, they do.</p> <p>But interestingly, most Christian fundamentalists see no conflict with other kinds of science (chemistry, for example), and are typically &#8212; despite what one might extrapolate from <a href="http://en.wikipedia.org/wiki/Young_Earth_Creationism">Young Earth Creationists</a> or <a href="http://en.wikipedia.org/wiki/Modern_geocentrism">geo-centrists</a>, for example &#8212; quite happy to accept many forms of modern science and technology.</p> <p>Evangelicals &#8212; who take the Bible less literally than the fundamentalists, but otherwise share many values &#8212; have even fewer quibbles with mainstream science, but do tend still to object specifically to the concept of Darwinian evolution. They object so strongly, and yet otherwise consider science so important, that they have struggled to create and teach their own theory of &#8220;<a href="http://en.wikipedia.org/wiki/Intelligent_design">Intelligent Design</a>&#8221; to account for the <a class="zem_slink" title="Scientific method" href="http://en.wikipedia.org/wiki/Scientific_method" rel="wikipedia">empirical data</a> scientists have accumulated.</p> <p>But why is it evolution, and not heliocentrism or photosynthesis, both of which draw from scientific theories which organize and explain empirical data, which has attracted such vehement opposition from evangelicals and fundamentalists?</p> <p>First, I think evolution, and especially the apparent &#8220;randomness&#8221; of mutations that leads to change (even if <a class="zem_slink" title="Natural selection" href="http://en.wikipedia.org/wiki/Natural_selection" rel="wikipedia">natural selection</a> itself is far from random), generates a kind of anti-materialist repugnance that sees in it a threat to the moral order. If our existence owes as much to chance as anything else, does this not threaten the role of the divine in our lives and, perhaps more importantly, does this not threaten or status as the elite of the world? If we as humans came to exist in the same manner as every animal on Earth, what right do we have to claim an immortal soul?</p> <p>Second, Protestantism comes from a tradition that values evidence and observation, but looks suspiciously at over-abstract concepts and trust in elites. Thus, evangelicals are wary of science that relies on <em>abstractions</em>, but are fine with science that is strongly connected with observable events. We can <em>see </em>and <em>experience </em>a chemical reaction, but we cannot see or directly experience macro-evolution over millennia.</p> <p>So why is evolution a target? It is abstract. It is difficult to observe directly, and thus seem to require trusting in scientific elites. (Both of these have historically been issues for Protestantism generally.) It is threat to the established order of things. It <em>feels wrong.</em></p> <p>In short, it is less about the <em>truth</em> of the matter than it is about <em>values</em>.</p> <p>Does this same kind of analysis apply to conservative resistance to <a href="http://www.economist.com/opinion/displaystory.cfm?story_id=15719298">climate change research</a>? How many of those who do not believe that the Earth&#8217;s climate is being impacted by human activity are evangelical or fundamentalist Protestants? I&#8217;m not sure of the answers to these two questions, but I am curious.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="float: right; border-style: none;" src="http://img.zemanta.com/pixy.gif?x-id=7191a01c-04fd-41f4-b6a3-12b04d92bd15" alt="" /></div> "The Statute of Anne: “An Act for the Encouragement of Learning”" https://inpropriapersona.com/articles/the-statute-of-anne-an-act-for-the-encouragement-of-learning/ Mon, 12 Apr 2010 17:00:43 +0000 7e6b662f12a7c0b5a3208d5d2fac9d57 <p><a href="http://www.flickr.com/photos/38782010@N00/3984413475"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="&quot;Penny Black Printing Press in a British Library Hallway (London, England)&quot; by Flickr user takomabibelot, used under a Creative Commons Attribution 2.0 license." src="http://farm3.static.flickr.com/2555/3984413475_79fddc3df7_m.jpg" border="0" alt="Penny Black Printing Press in a British Library Hallway (London, England)" hspace="5" width="169" height="240" /></a>300 years ago Saturday, the <a href="http://en.wikipedia.org/wiki/Statute_of_Anne">Statute of Anne</a> created the first modern system of copyright. A few <a href="https://inpropriapersona.com/2010/02/you-do-not-get-an-a-for-effort-with-copyright/">fun facts about the Act</a>:</p> <ul> <li>Violating copyright was defined as &#8220;infringement,&#8221; not &#8220;theft&#8221; (and remains so today).</li> <li>Before the Act, <em>printers, </em>not authors, were the ones granted monopoly rights over works.</li> <li>The United States, before and after the Act, was the source of many illicit reprints of British texts&#8211;since America did not get similar copyright rules until much later.</li> <li>Copyright was <a href="http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml">designed to create an incentive to create</a>, but to still permit an eventual public benefit by expanding the public domain.</li> </ul> <p>Want more discussion on how copyright <em>ought</em> to function? To commemorate the anniversary, the British Council <a href="http://web.archive.org/web/20110504054512/http://www.counterpoint-online.org/copyright-1710-2010/">asked just that question</a>:</p> <blockquote><p>The world&#8217;s first copyright law was passed by the English Parliament on 10 April 1710 as &#8216;An Act for the Encouragement of Learning&#8217;. Its 300th anniversary provides a unique opportunity to review copyright&#8217;s purposes and principles.  If today we were starting from scratch, but with the same aim of encouraging learning‚ what kind of copyright would we want?</p> <p>via <a href="http://web.archive.org/web/20110504054512/http://www.counterpoint-online.org/copyright-1710-2010/">Copyright 1710-2010 « Counterpoint</a>.</p></blockquote> <p>There are a number of interesting ideas in there that are worth thinking about, including:</p> <ul> <li>Cory Doctorow&#8217;s proposal that copyright law ought to &#8220;<a href="http://www.boingboing.net/2010/04/10/copyright-turns-300.html">recognize and celebrate the wonderful thing that is copying</a>.&#8221;</li> <li>Mark Shuttleworth suggests, <a href="http://web.archive.org/web/20100416003830/http://www.counterpoint-online.org:80/its-time-to-get-creative/">&#8220;It&#8217;s time to get creative about the incentives for creation</a>.&#8221;</li> <li>Alex Fleetwood writes, &#8220;<a href="http://web.archive.org/web/20100416003211/http://www.counterpoint-online.org:80/an-act-to/">Copyright has become synonymous with the protection of endangered cultural industries</a>.&#8221;</li> <li>Lawrence Lessig believes that the &#8220;<a href="http://web.archive.org/web/20100416204643/http://www.counterpoint-online.org:80/for-the-love-of-culture/">problem that we are confronting is the result of a law that has been rendered hopelessly out-of-date by new technologies</a>.&#8221;</li> </ul> "Net neutrality and deference to the FCC" https://inpropriapersona.com/articles/net-neutrality-and-deference-to-the-fcc/ Sun, 11 Apr 2010 17:00:49 +0000 5d8bcc430beb92cf38ede99368e8551e <p><a href="http://www.flickr.com/photos/91487354@N00/450061525"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="&quot;chevron.&quot; by Flickr user escapo, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license." src="http://farm1.static.flickr.com/168/450061525_56633aa0ec_m.jpg" border="0" alt="chevron." hspace="5" width="240" height="240" /></a>A few days ago the <a href="http://www.cadc.uscourts.gov">D.C. Circuit</a>, in a 3-0 decision, held that the FCC could not require Comcast, or other broadband providers, to follow principles of network neutrality under their current justification. The decision would allow Comcast and other ISPs to return to &#8220;<a href="http://www.boingboing.net/2010/04/06/fcc-loses-big-in-cou.html">blocking or slowing certain services</a>&#8221; or, alternatively, in the words of Senator Orrin Hatch, give them &#8220;<a href="http://www.techdirt.com/articles/20100406/1602548903.shtml">an actual incentive to expand capacity</a>.&#8221; Although the last argument is ridiculous <a href="http://balkin.blogspot.com/2010/04/how-i-lost-big-one-bigtime.html">based on the facts</a>, the first is a real concern given Comcast&#8217;s previous statements and activities.</p> <p>Marvin Ammori, reacting to the ruling denying the FCC authority to forbid Comcast&#8217;s actions, writes:</p> <blockquote><p>At least, that&#8217;s the effect if the Obama FCC continues to follow the legal framework adopted under the Bush administration&#8211;a framework that requires the FCC to play football with a tennis racket, a framework for authority that the DC Circuit just beat to death, shot, and then drowned.</p> <p>via <a href="http://balkin.blogspot.com/2010/04/how-i-lost-big-one-bigtime.html">How I Lost the Big One, Bigtime</a></p></blockquote> <p>He goes on to suggest that the FCC could (and <a href="http://thehill.com/blogs/hillicon-valley/technology/90747-fcc-dealt-major-blow-in-net-neutrality-ruling-favoring-comcast">may well</a>) simply <a href="http://thehill.com/blogs/hillicon-valley/technology/90789-kerry-fcc-has-rationale-to-consider-broadband-re-classification">reclassify</a> ISPs like Comcast under a different administrative heading, one that gives the FCC greater power and a different justification for regulation.</p> <p>Most interesting to me from a legal standpoint is the hint that perhaps courts are backing away from the kind of administrative deference they&#8217;ve shown previously (1984&#8217;s <a href="http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.">Chevron v. NRDC</a> is the key case on this topic). This particular instance may be frustrating for netizens, but I think a move away from too much deference to agencies is a <em>good thing.</em></p> "Vaccination and anti-vaccination at the turn of the 20th century" https://inpropriapersona.com/articles/vaccination-and-anti-vaccination-at-the-turn-of-the-20th-century/ Fri, 02 Apr 2010 16:56:12 +0000 5ee918f27516d377d82b45b5a93b908b <figure id="attachment_4349" style="max-width: 233px" class="wp-caption alignright"><a href="http://americanhistory.si.edu/polio/virusvaccine/history.htm"><img class="size-medium wp-image-4349" title="Smallpox vaccinations" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_233/v1514417269/imghistory_05lg_bdlydb.jpg" alt="" width="233" height="300" /></a><figcaption class="wp-caption-text">Smallpox vaccinations in Mississippi Valley following a flood, early 20th century</figcaption></figure> <p>By near the end of the nineteenth century, <a href="http://en.wikipedia.org/wiki/Edward_Jenner">Jennerian</a> <a href="http://en.wikipedia.org/wiki/Vaccination">vaccination</a> had become a generally (but not universally) accepted medical practice. But it still had its critics.</p> <p>Philosophically, they argued on the grounds of personal liberty and autonomy: people should be able to choose whether or not to expose themselves to risk. That is, in essence, individual rights ought to be supreme over society’s larger interests in protecting the majority from harm. Vaccination was &#8220;<a href="http://ssrn.com/abstract=362280">unwarranted governmental interference with human autonomy and liberty</a>.&#8221;</p> <p>Anti-vaccinationists also argued on more scientific or empirical grounds, maintaining that &#8220;<a href="http://www.ncbi.nlm.nih.gov/pubmed/15040196">vaccination was either &#8216;useless&#8217; or that it was an &#8216;injurious,&#8217; dangerous procedure</a>.&#8221; Others argued that vaccination transmitted other dangerous diseases, like syphilis. Some opponents even maintained that vaccination caused the smallpox epidemic in the Northeast in the early 1900s, and that vaccination was thus responsible for the &#8220;<a href="http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449223/">slaughter [of] tens of thousands of innocent children</a>.&#8221;</p> <p>One cannot group all anti-vaccinationists into one camp. While there were organized groups opposed to vaccination, there were also individual stories of opposition, like that of Dr. Immanuel Pfeiffer, a Danish immigrant in Boston. A strident anti-vaccionationist, he believed that those in good health were immune from smallpox, and thus that vaccination was unnecessary. In January 1902, in the midst of the Boston epidemic, he visited a smallpox hospital. A month later, he nearly died of the disease. But Dr. Pfeiffer&#8217;s theory differed from many other vaccination opponents, who even condemned his hospital visit as &#8220;<a href="http://www.ncbi.nlm.nih.gov/pubmed/11172172">foolhardiness</a>.&#8221;</p> <p>As another example, Reverend Henning Jacobson&#8211;or his lawyers&#8211;argued in 1905 before the Supreme Court in Jacobson v. Massachusetts that compulsory vaccination violated &#8220;<a href="http://en.wikipedia.org/wiki/Jacobson_v._Massachusetts">the inherent right of every freeman to care for his own body and health in such as way as to him seems best</a>.&#8221;</p> <p>Other anti-vaccinationists maintained that vaccination had significant risks, a reasonable position given the lax controls over vaccination and vaccinators at the time. Some even went further and argued that vaccination itself caused the 1901 smallpox epidemic in the Northeast.</p> <p>Finally, not all who were opposed to vaccination made it their primary mission: according to Martin Fichman and Jennifer Keelan, &#8220;<a href="http://www.ncbi.nlm.nih.gov/pubmed/17893067">toward the end of the nineteenth century a number of middle class female social reformers began to absorb anti-vaccinationism into their feminist platform</a>,&#8221; but it was not the central point of the movement.</p> <p>The wide variety of anti-vaccination beliefs illustrates the extent of the opposition that emerged when public health officials attempted to use vaccination to fight smallpox outbreaks early twentieth century.</p> <p><em>You can read my work ing paper, “<a href="http://ssrn.com/abstract=1579529">Lessons from Smallpox Vaccination</a>,” in its entirety on SSRN.</em></p> "Does the funding of anti-climate change groups by Koch Industries invalidate their position?" https://inpropriapersona.com/articles/does-the-funding-of-anti-climate-change-groups-by-koch-industries-invalidate-their-position/ Wed, 31 Mar 2010 17:30:39 +0000 35a0ca7a161f1b31a9548f32c2087157 <p><a href="http://www.flickr.com/photos/8623220@N02/2179929940"><img class="alignright" style="margin-left: 5px; margin-right: 5px; border: 0px initial initial;" title="Smoke stacks, from the Library of Congress" src="http://farm3.static.flickr.com/2280/2179929940_196018c40b_o.jpg" border="0" alt="" hspace="5" width="221" height="177" /></a>Accusing opponents of being biased is a staple attack by all sides in many debates. As just one example, anti-vaccinationists have accused pro-vaccine doctors of profiting from vaccines, and vaccine proponents have struck back with similar claims. Implicit in these attacks is the idea that a funding source can unduly influence results&#8211;a claim most would find uncontroversial.</p> <p>In the world of scientific ethics, though, it isn&#8217;t so much <em>who </em>funds research&#8211;it&#8217;s a given that someone, potentially with some agenda, is doing the funding&#8211;but rather whether or not the source of funding is made public in an open and honest manner.</p> <p>That, I think, is the real message in <a class="zem_slink" title="Greenpeace" rel="wikipedia" href="http://en.wikipedia.org/wiki/Greenpeace">Greenpeace</a>&#8216;s investigate research (yes, Greenpeace has an agenda, too, but it&#8217;s pretty clear what it is):</p> <blockquote><p>A Greenpeace investigation has identified a little-known, privately owned US oil company as the paymaster of global warming sceptics in the US and Europe.</p> <p>The environmental campaign group accuses Kansas-based <a class="zem_slink" title="Koch Industries" rel="wikipedia" href="http://en.wikipedia.org/wiki/Koch_Industries">Koch Industries</a>, which owns refineries and operates oil pipelines, of funding 35 conservative and libertarian groups, as well as more than 20 congressmen and senators. Between them, Greenpeace says, these groups and individuals have spread misinformation about climate science and led a sustained assault on climate scientists and green alternatives to fossil fuels.</p> <p>via <a href="http://www.guardian.co.uk/environment/2010/mar/30/us-oil-donated-millions-climate-sceptics">US oil company donated millions to climate sceptic groups, says Greenpeace | Environment | guardian.co.uk</a>.</p></blockquote> <p>Does this kind of relationship suggest problems with opponents of <a class="zem_slink" title="Climate change" rel="wikipedia" href="http://en.wikipedia.org/wiki/Climate_change">global climate change</a>? Not necessarily, I think&#8211;if their arguments are valid and their research good, it doesn&#8217;t matter who funds them. Still, since I can&#8217;t easily replicate their research and thus have to take a great deal on trust, a failure to reveal the <em>potential</em> conflict of interest is concerning, I think, and suggests an equally potential for improper bias.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=aebaee9f-b627-4c98-8c26-777d5c1459e9" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Smallpox inoculation and quarantine in colonial America" https://inpropriapersona.com/articles/smallpox-inoculation-and-quarantine-in-colonial-america/ Sun, 28 Mar 2010 20:08:23 +0000 9ca236c7713afa566b668c8ac5c2bf8c <p><a href="http://commons.wikimedia.org/wiki/File:Lg_ph1444tobaccowharves.jpg"><img class="alignright" title="Depiction of a Tobacco Wharf in Colonial America" src="http://upload.wikimedia.org/wikipedia/commons/b/be/Lg_ph1444tobaccowharves.jpg" alt="" width="288" height="174" /></a></p> <p>In the seventeenth century, colonists in America, despite &#8220;<a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">strong religious beliefs about pestilence-as-divine-punishment</a>,&#8221; readily made the connection between arriving ships and outbreaks of smallpox. Their populations, unlike urban centers in Europe where outbreaks appeared random, were not sufficient to sustain smallpox as an endemic virus. Thus, outbreaks tended to occur with the arrival of ships, and could not be blamed on &#8220;<a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">unsanitary neighbors</a>,&#8221; as in Europe.</p> <p>The earliest step taken by European settlers in North America, then, was the quarantine of arriving ships. Some extended this approach beyond maritime quarantines to include isolation of victims to prevent the spread of the disease, including early legislative attempts in the colony of Virginia in the 1660s.Charleston, South Carolina mandated the isolation of smallpox victims at home as of 1738. Boston and New York City both established quarantine stations as of 1717 and 1755, respectively.</p> <p>In 1721, Reverend Cotton Mather and Dr. Zabdiel Boylston introduced inoculation in the fight against smallpox for the first time, a move that &#8220;<a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">provoked a violent controversy</a>.&#8221; Inoculation brought forth stronger claims of personal autonomy and liberty than quarantine had, likely because they involved purposefully infecting an unexposed person with a potentially deadly disease, as opposed to the maintenance of a kind of status quo as with quarantine. Inoculation was viewed by some, especially by Puritan New Englanders in the early eighteenth century, as &#8220;<a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">interfering with the will of Divine Providence</a>&#8221;&nbsp;in a way that quarantine did not. Smallpox and other diseases were God&#8217;s &#8220;<a href="http://ssrn.com/abstract=362280">mechanisms for controlling the balance between the blessed and the damned</a>&#8221; and served &#8220;<a href="http://ssrn.com/abstract=362280">as natural controls over the size and extent of the poorer populations</a>.&#8221; According to James Hodge and Lawrence Gostin, &#8220;<a href="http://ssrn.com/abstract=362280">[t]his Malthusian analysis was one of the most widely quoted theories of the early antivaccinationists</a>.&#8221; This view survived well into the twentieth century.</p> <p>Reactions in 1721 were violent. In the midst of Boston’s smallpox outbreak, Mather and Boylston began inoculating patients, beginning with Boylston’s son. They were roundly condemned: &#8220;<a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">Physicians, ministers, and citizens were outraged and horrified that Boylston had deliberately infected someone with smallpox</a>.&#8221; Both received death threats, and Mather’s house was attacked with a homemade grenade.</p> <p>Many opponents of immunization were especially concerned with the potential danger of actively spreading smallpox to a community through the means of inoculation, a very real possibility when dealing with a live smallpox virus (instead of Jenner’s much safer vaccinations with cowpox virus). From a religious perspective, this kind of interference broke the &#8220;<a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">covenant between the community as a whole and God</a>.&#8221; With inoculation in play, &#8220;<a href="http://www.worldcat.org/title/greatest-killer-smallpox-in-history-with-a-new-introduction/oclc/49305765&amp;referer=brief_results">no longer could the people be told convincingly that their suffering resulted from their sins, or that repentance was the only road to salvation</a>.&#8221; From a medical perspective, intentional infection with smallpox could be seen as contradictory to the Hippocratic oath and general tenants of medical ethics.</p> <p>Early approaches to mandatory public health measures lacked the concept of a legally-articulated &#8220;exemption&#8221; from the policy for individuals. Any exemption or exception was applied in an ad-hoc manner, even as many public health interventions were, in fact, ad-hoc responses to circumstances. Mather and Boylston, for example, acted as individuals, not as public health officials, and their inoculations were neither systematic nor comprehensive. Quarantine, on the other hand, was state-sponsored. It would be applied to incoming ships if smallpox was suspected, but there was no articulated provision for allowing any particular to leave quarantine early. The concept was to protect the public as a whole, not to preserve individual liberties.</p> <p><em>You can read my working paper, &#8220;<a href="http://ssrn.com/abstract=1579529">Lessons from Smallpox Vaccination</a>,&#8221; in its entirety on SSRN.</em></p> "Copyright for Librarians: free and useful training" https://inpropriapersona.com/articles/copyright-for-librarians-free-and-useful-training/ Fri, 26 Mar 2010 23:35:16 +0000 5509a308b4c16110da3fde3be106d0ba <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 120px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Copyright.svg"><img class=" " title="© is the copyright symbol in a copyright notice" src="http://upload.wikimedia.org/wikipedia/commons/thumb/b/b0/Copyright.svg/200px-Copyright.svg.png" alt="© is the copyright symbol in a copyright notice" width="120" height="120" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://cyber.law.harvard.edu/copyrightforlibrarians/">Copyright for Librarians</a> is a useful resource for anyone&#8211;not just librarians&#8211;to learn about the current state of copyright law.</p> <p>It&#8217;s a joint project of the <a title="http://cyber.law.harvard.edu/" href="http://cyber.law.harvard.edu/">Berkman Center for Internet &amp; Society</a> and <a title="http://www.eifl.net/cps/sections/home" href="http://www.eifl.net/cps/sections/home">Electronic Information for Libraries (eIFL)</a>, a consortium of libraries from 50 countries in Africa, Asia and Europe.</p> <p>The training course is aimed at librarians in developing countries, but most of the information is based on U.S. copyright law for the time being. According to the &#8220;objectives&#8221; on the site, it seeks to provide training on:</p> <ul> <li>copyright law in general</li> <li>the aspects of copyright law that most affect libraries</li> <li>how librarians in the future could most effectively participate in the processes by which copyright law is interpreted and shaped.</li> </ul> <p>Even though the training materials are intended for librarians, the site provides a useful background for anyone interested in copyright law. <em>Recommended.</em></p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=78512266-8d56-4dd1-af76-33cf56257c39" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Are universities about selling information?" https://inpropriapersona.com/articles/are-universities-about-selling-information/ Sun, 07 Mar 2010 17:50:25 +0000 1215476b800e325d8a978ca30828a01a <p><a href="http://www.flickr.com/photos/library_of_congress/2179867224/"><img class="alignright size-medium wp-image-2134" title="Rotunda of the University of Virginia from the Library of Congress" src="http://res.cloudinary.com/krisnelson/image/upload/h_241,w_300/v1514416984/2179867224_7bd1b5bf28_o_xo3rct.jpg" alt="" width="300" height="241" /></a>No. Instead, they are about creating connections and spaces for thinking and growing &#8212; otherwise they truly would be easily replaceable by online streams and Wikipedia articles. In short, I don&#8217;t believe universities (in their best form, at least) are easily replicated by technological means of information dissemination. But despite the advantages their physicality and tradition offers, many universities have tended to see themselves as simply the means to fill students up with information, stick an &#8220;approved&#8221; stamp on them, and send them out into the world:</p> <blockquote><p>As institutions of higher learning seek ways to economize by eliminating and devaluing the spaces of learning that have been so central to &#8220;the University,&#8221; they are coming to resemble exactly what Dan Brown sees in them &#8212; exchange sites of information, marketplaces easily replaced by much cheaper flows of information accessed on the internet. As they pack more students into lecture halls and fill the rosters of on-line classrooms, universities save billions of dollars in the short run, but diminish the value of their degrees.</p></blockquote> <p>via <a href="http://academhack.outsidethetext.com/home/2010/technology-and-affordable-education/">academhack » Blog Archive » Technology and Affordable Education</a>.</p> <p>If universities continue like this, the only value they have to add (over cheaper alternatives) is the &#8220;approved&#8221; stamp of a recognizable brand. But this will only last so long until their cuts cheapen the brand and alternative competitors begin to increase their own brand value.</p> <p>Most faculty recognize this. Most students do too. Even most university administrators have a sense of this, but feel like there is little they can do in the face of constant budget cuts and crises. Well, what else specifically can those who actually set university policy actually do in the face of economic crisis and state budget cuts?</p> <p>Perhaps there is not much that can be done except to hold on and evangelize the importance of the university as a public space &#8212; and to remember the importance of less-measurable aspects of a university education, like the humanities, when making cuts.</p> <p>More optimistically, perhaps it doesn&#8217;t matter what administrators do. The university has unique attributes &#8212; historical and physical &#8212; that are not shared by other forms of information sharing. This uniqueness may well make universities as institutions more resilient than we may otherwise expect. I hope so.</p> "Is scientific peer review censorship?" https://inpropriapersona.com/articles/is-scientific-peer-review-censorship/ Sun, 28 Feb 2010 21:30:29 +0000 4956054e453680cabbd5c6983cb47762 <p><a href="http://www.flickr.com/photos/barryhorneotf/4330753395/"><img class="alignright" title="&quot;Chairman Mao's highest detectives [censored]&quot; by Flickr user Stephen Dagnall, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm5.static.flickr.com/4021/4330753395_c475861408_m.jpg" alt="" width="240" height="161" /></a><a href="http://www.suzanmazur.com/">Suzan Mazur</a> &#8212; a critic of &#8220;<a href="http://en.wikipedia.org/wiki/Darwinism">Darwinism</a>&#8221; (I think she means modern biology) &#8212; recently raised a critique of the scientific peer-review process, claiming that it serves primarily as a means of censoring non-conformist ideas. The <em>concept</em> has potential merit &#8212; although she buries it in arguments like this:</p> <blockquote><p>Suzan Mazur: You&#8217;ve also got scientists in evolutionary biology who pound on th<span style="white-space: pre;"> </span>e creationists because they don’t have fresh discoveries themselves. What they&#8217;re doing is making an industry out of bashing the creationists instead of improving the science. That&#8217;s what&#8217;s happening on the science blogs, where you get these virtual death squads opposing any science that veers from Darwin orthodoxy. Characters purporting to be atheist scientists who are actually violent Darwin religious cultists censoring the free flow of ideas. Making statements like, &#8220;I&#8217;m always happy to see a fellow hang himself.&#8221;</p> <p>That&#8217;s the peer review that&#8217;s now popular. It&#8217;s degenerated into a bloody massacre.</p> <p>via <a href="http://www.counterpunch.org/mazur02262010.html">Suzan Mazur: Peer Review as Censorship</a> (for a more in-depth critique, see<br /> <a href="http://recursed.blogspot.com/2010/02/susan-mazur-perpetually-clueless.html">Suzan Mazur &#8211; Perpetually Clueless</a>).</p></blockquote> <p>Leaving aside her obvious agenda, does peer review constitute <a href="http://legal-dictionary.thefreedictionary.com/censorship">censorship</a>? Technically, censorship involves government proscription, although can be seen to extend to suppression by anyone with sufficient authority. In the United States, censorship is typically considered anathema to a free society, but that is not true everywhere (Europe prohibits hate speech, for example, and even in the United States certain kinds of censorship are acceptable, such as bans on <a class="zem_slink" title="Child pornography" rel="wikipedia" href="http://en.wikipedia.org/wiki/Child_pornography">child pornography</a>).</p> <p><a href="http://www.flickr.com/photos/cudmore/4079784/"><img class="alignleft" title="&quot;lab_12_7_ 020&quot; by Flickr user cudmore, used under a Creative Commons Attribution-Share Alike 2.0 license" src="http://farm1.static.flickr.com/3/4079784_ce7e886ab0_m.jpg" alt="" width="180" height="240" /></a>Unlike prohibitions with the legal backing of government authority, the peer reviewers act in a more ad-hoc fashion. They simply do not operate with the kind of unified power characteristic of censors (unless you believe that biology is controlled by some kind of cabal, I suppose).</p> <p>That said, there is a sense in which peer reviewers &#8212; especially in the sciences &#8212; do act in a kind of censorial capacity. They &#8220;referee&#8221; articles, looking for unwarranted claims, irrelevant data, unsubstantiated findings, or other &#8220;bad&#8221; science.</p> <p>In theory, this review is not supposed to be on the acceptability or not of a certain theoretical perspective or result, but rather strictly on the basis of <a class="zem_slink" title="Scientific method" rel="wikipedia" href="http://en.wikipedia.org/wiki/Scientific_method">scientific methodology</a>: objectivity, logic, rationality, proper controls, accurate math and statistics, and so on.</p> <blockquote class="pullquote"> <p>There are no peers for new discoveries. To judge something a peer would have to know about it. If a peer already knew about it, it would not be a new discovery. &#8211; <a class="pullquote-author" href="http://atlasobscura.com/places/larry-spring-school-common-sense-physics">Larry Spring</a></p> </blockquote> <p>In practice, peer review certainly can act as a conservative break on innovative or controversial ideas, requiring additional support if an author seeks to revolutionize an area of science. (Personal perspectives of reviewers <em>can</em> also play a role in reviews, of course.) The effect of this may well be that proponents of such controversial ideas as &#8220;<a class="zem_slink" title="Intelligent design" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intelligent_design">intelligent design</a>&#8221; (to pick Mazur&#8217;s area of interest) are expected to follow rigorous scientific standards, standards which may indeed make it hard to get past reviewers (since certain <a class="zem_slink" title="Fallacy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fallacy">logical fallacies</a>,  evidentiary problems, and so on often occur in such arguments).</p> <p>So is peer review &#8220;censorship&#8221;? Yes, in a decentralized and conservative manner, it is. But without it, peer reviewed journals would be <em>less </em>trustworthy, not more &#8212; we would not be able to rest our evaluation of trustworthiness on anything outside the article itself.</p> <p>This might, though, allow for more controversial and revolutionary theories to emerge (innovation, anyone?) but it would increase the amount of work we, as readers, would have to do to evaluate the trustworthiness of sources. (This might be a good thing.) Essentially, scientific journals would be indistinguishable from the Web as a whole.</p> <p>What do you think? Is peer review censorship? Is it <em>bad</em> censorship? Are reforms needed and, if so, what kinds?</p> "Yelp sued, argues lawsuit is without merit" https://inpropriapersona.com/articles/yelp-sued-argues-lawsuit-is-without-merit/ Sat, 27 Feb 2010 02:49:54 +0000 b29b78bc533ffcfd872f4967e2087037 "Are books – electronic or not – becoming “fringe media”?" https://inpropriapersona.com/articles/are-books-electronic-or-not-becoming-fringe-media/ Sun, 21 Feb 2010 18:15:37 +0000 ab18e1820b7874a8858e8848abda6a67 <p><a href="http://www.flickr.com/photos/incognita_mod/498695873/"><img class="alignright size-medium wp-image-2065" title="&quot;Case&quot; (books in a flooded and abandoned house, New Orleans, USA) by Flickr user Incognita Nom de Plume, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://res.cloudinary.com/krisnelson/image/upload/h_300,w_300/v1514416988/498695873_d950971551_o_voimgu.jpg" alt="" width="210" height="210" /></a><a title="Posts by Kevin Kelleher" href="http://gigaom.com/author/elcogote/">Kevin Kelleher</a> of <a href="http://gigaom.com">GigaOM</a> believes that &#8220;books are becoming a fringe media.&#8221; He writes:</p> <blockquote><p>Like other media, books will change to adapt to the new readers, and I think this means less non-fiction. Even before the web, all business books &#8212; and the majority of non-fiction books &#8212; struck me as 1,000-word pamphlets puffed out to book length with heroic amounts of filler. So if some books are forced to condense to keep our attention, so much the better.</p> <p>via <a href="http://gigaom.com/2010/02/20/books-are-becoming-fringe-media/">Books Are Becoming Fringe Media – GigaOM</a>.</p></blockquote> <p>Although I disagree with the implication that all book-length works are dying, I do think he has an excellent point: most non-fiction could stand some good editing, and could just as easily be condensed to article length (or, at least, a series of articles). I made a similar point previously, when I suggested that <a href="https://inpropriapersona.com/2010/01/historians-need-to-stop-obsessing-over-writing-books/">historians need to stop obsessing over writing books</a>.</p> <p>But if he&#8217;s suggesting that book-length <em>fiction</em> is dying, he&#8217;s wrong, I think. I just don&#8217;t see short stories winning out over novels &#8212; and his data doesn&#8217;t support this either, even as he draws the conclusion that novels, like non-fiction books, are now fringe media:</p> <blockquote><p>As for fiction, there will always be an audience for people who know how to tell good stories. According to Nielsen BookScan, sales of non-fiction books fell 7 percent in 2009, while adult fiction rose 3 percent. There may well be a home for fiction in a world where the web takes up an ever larger portion of our mind share, but novels &#8212; like books and e-readers in general &#8212; will have to fight their way back from the fringe.</p></blockquote> <p>Online reading cuts into TV time, not time that would otherwise be spent reading novels for pleasure. On the other hand, non-fiction reading (perhaps excepting autobiographies and similar pleasure reading?) is a business-like activity, and competes with research, business meetings, email, newspaper articles, and other, shorter and more focused writing. In today&#8217;s marketplace of ideas, shorter wins.</p> "Six more of the best WordPress plugins" https://inpropriapersona.com/articles/six-more-of-the-best-wordpress-plugins/ Sat, 20 Feb 2010 18:30:33 +0000 8ede7a0803cc54dbb66b5b47dc9680fb <p><a href="http://www.flickr.com/photos/iamperegrino/2913018697/"><img class="alignleft" title="&quot;Wordpress Schawg&quot; by Flickr user Peregrino Will Reign, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license " src="http://farm4.static.flickr.com/3036/2913018697_ccbb33e993_m.jpg" alt="" width="168" height="126" /></a>I admit it. I&#8217;m a WordPress plugin junkie. I&#8217;m continually updating, adding, removing, and adjusting the list of plugins I have running this site. Obviously, this can lead to slowdowns, which is why caching plugins (like <a href="http://ocaoimh.ie/wp-super-cache/">WP Super Cache</a> or <a href="http://www.satollo.net/plugins/hyper-cache">Hyper Cache</a>) are so important, especially for dealing with sudden surges in traffic. So keep that in mind!</p> <div class="sidebox"><strong>See my previous lists:</strong></p> <ul> <li><a href="https://inpropriapersona.com/2009/09/five-lesser-known-but-great-wordpress-plugins/">Five lesser-known &#8212; but great &#8212; WordPress plugins</a></li> <li><a href="https://inpropriapersona.com/2009/06/my-current-top-5-favorite-wordpress-plugins/">My current top 5 favorite WordPress plugins</a></li> </ul> </div> <p>That said, here are six of my current favorites:</p> <p><a href="http://www.junyent.org/blog/2006/05/20/around-this-date-in-the-past-wordpress-widget/"><strong>Around this date in the past&#8230; &#8211; Widget Edition</strong><br /> </a><em> By Joan Junyent Tarrida<br /> </em> This little plugin gives you a widget that shows posts from, well, around this date in the past. It&#8217;s quite useful to help &#8220;bubble up&#8221; articles you&#8217;ve written previously and that may otherwise be lost in the past.<span class="removed_link" title="/wp-content/uploads/2010/02/AroundThisDateInThePast.png"><img class="aligncenter size-medium wp-image-2035" title="AroundThisDateInThePast" src="http://res.cloudinary.com/krisnelson/image/upload/h_116,w_300/v1514416882/AroundThisDateInThePast_fmxux9.png" alt="" width="300" height="116" /></span></p> <p><a href="http://maff.ailoo.net/projects/autothumb/"><strong>AutoThumb</strong></a><br /> <em>By Mathias Geat</em><br /> AutoThumb incorporates phpThumb into your site in a simple, yet powerful, fashion. It automatically pipes images through phpThumb, resizing them based on the attributes you apply to the <strong>img</strong> tag. These smaller images are then delivered to browsers, as well as being c<a href="https://inpropriapersona.com/wp-content/uploads/2010/02/mafflog.png"><img class="alignleft size-thumbnail wp-image-2038" title="mafflog" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_128,w_150,x_69,y_0/v1514416879/mafflog_ql13uw.png" alt="" width="150" height="128" /></a>ached for future redelivery. (The original images can be hosted locally or remotely.)</p> <p><strong><a href="http://www.phoenixheart.net/wp-plugins/free-cdn">Free CDN</a><span class="removed_link" title="/wp-content/uploads/2010/02/CoralCDN.png"><img class="alignright size-thumbnail wp-image-2039" title="CoralCDN" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_129,w_150,x_104,y_0/v1514416877/CoralCDN_eyhdto.png" alt="" width="150" height="129" /></span></strong><br /> <em>By Phoenixheart</em><br /> Free CDN automatically rewrites the URLs in your site (images and more, depending on what you select in the options) so that they are delivered to your visitors via <a href="http://www.coralcdn.org/">CoralCDN</a>. CoralCDN is a free content-delivery service that, while not necessarily speeding up delivery of content, does reduce the bandwidth and load required by your server. This makes it ideal for limited hosting providers or for hosting your blog at home.</p> <p><a href="http://www.fairweb.fr/en/plugins-wordpress/fw-post-image/"><strong>fw-post-image</strong></a><br /> <em> By Myriam Faulkner</em><br /> <a href="https://inpropriapersona.com/wp-content/uploads/2010/02/FairWeb.png"><img class="alignleft size-thumbnail wp-image-2041" title="FairWeb" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_96,w_150,x_2,y_0/v1514416869/FairWeb_pcedwt.png" alt="" width="150" height="96" /></a>This simple little plugin builds on the thumbnail feature included with WordPress 2.9. Once you have this plugin installed, if you do not explicitly set a thumbnail, WordPress will scan the images you put into your posts and use the first one it finds as the thumbnail (note: it favors local images over remote ones, but supports both).</p> <p><a href="http://ottodestruct.com/blog/wordpress-plugins/simple-facebook-connect/"><strong>Simple Facebook Connect</strong></a><br /> <em>By Otto</em><br /> <a href="https://inpropriapersona.com/wp-content/uploads/2010/02/FacebookConnect.png"><img class="alignright size-thumbnail wp-image-2043" title="FacebookConnect" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_171,w_171,x_15,y_0/h_150,w_150/v1514416992/FacebookConnect_tni0ue.png" alt="" width="150" height="150" /></a>This plugin adds a series of smaller plugins, that let you add Facebook Connect features to your blog. Most useful, I think, is the support it adds for visitors to login to your comment system using their Facebook identities.</p> <p><span class="removed_link" title="http://res.cloudinary.com/krisnelson/image/upload/v1514416989/SmushIT_b6h6ku.png"><img class="alignleft size-full wp-image-2044" title="SmushIT" src="http://res.cloudinary.com/krisnelson/image/upload/v1514416989/SmushIT_b6h6ku.png" alt="" width="150" height="55" /></span><a href="http://dialect.ca/code/wp-smushit/"><strong>WP Smush.it</strong></a><br /> <em>By Dialect</em><br /> WP Smush.it takes advantage of Yahoo&#8217;s Smush.it service to automatically reduce image file sizes and improve performance when you upload images into WordPress.</p> "Wait, Second Life still exists? And universities still use it?" https://inpropriapersona.com/articles/wait-second-life-still-exists-and-universities-still-use-it/ Fri, 19 Feb 2010 20:43:09 +0000 c415311d7c92bd42b8fb014916586709 <p><a href="http://www.flickr.com/photos/pathfinderlinden/227332249/"><img class="alignright" title="&quot;Library of Congress Exhibit Now Open In Second Life&quot; by Flickr user Pathfinder Linden, used under a Creative Commons Attribution 2.0 license " src="http://farm1.static.flickr.com/64/227332249_0894edbc6f_m.jpg" alt="" width="240" height="144" /></a>I was surprised to <a href="http://chronicle.com/article/After-Frustrations-in-Secon/64137/">read in the Chronicle of Higher Education</a> that universities are still using <a class="zem_slink" title="Second Life" rel="homepage" href="http://Secondlife.com">Second Life</a>, a &#8220;<a class="zem_slink" title="Virtual world" rel="wikipedia" href="http://en.wikipedia.org/wiki/Virtual_world">virtual worlds</a>&#8221; system I honestly thought died in 2007. No one I know ever used it. Why is this, considering the people I know tend to be early adopters of pretty much everything technological?</p> <p>Second Life always seemed to be the darling of traditional organizations &#8212; companies or universities &#8212; who seemed to like that it recreated &#8220;real space&#8221; online, unlike other online approaches (<a class="zem_slink" title="Twitter" rel="homepage" href="http://twitter.com">Twitter</a>, <a class="zem_slink" title="Facebook" rel="homepage" href="http://facebook.com">Facebook</a>, etc.) that required new ways of thinking and interacting.</p> <p>Now, finally, these organizations are beginning to realize they might need to reconsider:</p> <blockquote><p>Some colleges that have built <a class="zem_slink" title="Distance education" rel="wikipedia" href="http://en.wikipedia.org/wiki/Distance_education">virtual classrooms</a> in Second Life—the online environment where people walk around as avatars in a cartoonlike world—have started looking for an exit strategy.</p> <p>The virtual world has not lived up to the hype that peaked in 2007, when just about every day brought a new announcement from a college entering Second Life.</p> <p>via <a href="http://chronicle.com/article/After-Frustrations-in-Secon/64137/">After Frustrations in Second Life, Colleges Look to New Virtual Worlds &#8211; Technology &#8211; The Chronicle of Higher Education</a>.</p></blockquote> <p>Interestingly, the comments from educators in the Chronicle comments are generally quite supporting of Second Life, and many say virtual worlds are effective teaching environments, and criticize opponents as simply not understanding Second Life sufficiently.</p> <p>Fair enough. Any technology, even one that attempts to recreate physical space via keyboards, mice and screens, has a learning curve. But I just don&#8217;t see a learning curve as being why Second Life hasn&#8217;t &#8220;made it,&#8221; beyond die-hard fans (who do seem to love it). Perhaps it&#8217;s the &#8220;griefers&#8221; and the anonymity, or the lock-in to a single vendor and their technology.  Perhaps there&#8217;s something else. But, unfortunately or not, Second Life simply hasn&#8217;t succeeded. It&#8217;s out of step with a <a class="zem_slink" title="Web 2.0" rel="wikipedia" href="http://en.wikipedia.org/wiki/Web_2.0">Web 2.0</a> world.</p> <p>To succeed, I think, you need to get buzz with the early adopters of tech. These are the people who will advocate for you and help you innovate &#8212; but they won&#8217;t make your product a success by themselves. You also need to make your value clear &#8212; and not by <em>explaining </em>it &#8212; to newer adopters who may not be as &#8220;into&#8221; technology. Everyone needs to see &#8220;what&#8217;s in it for them,&#8221; as it were.</p> <p>Perhaps a more successful approach would be to leverage Facebook&#8217;s app infrastructure and build a more limited &#8220;virtual world&#8221; in that space. Maybe <a class="zem_slink" title="Linden Lab" rel="homepage" href="http://www.lindenlab.com/">Linden Labs</a> can even port Second Life into this environment. But regardless, universities need to reconsider their approaches now, and they need to look outside of their own comfort zone to do it.</p> "Highlights of the Google Books settlement hearing" https://inpropriapersona.com/articles/highlights-of-the-google-books-settlement-speakers/ Fri, 19 Feb 2010 08:15:19 +0000 6facb0f5e023266fb227a411e4280f7d <p><a href="http://www.flickr.com/photos/o0piate/2140232455/"><img class="alignright" title="&quot;old &amp; new culture&quot; by Flickr user o0piate, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm3.static.flickr.com/2157/2140232455_7089869934_m.jpg" alt="" width="240" height="160" /></a>Norman Oder updates us on the arguments at the Google Books settlement hearing (<a href="http://www.libraryjournal.com/article/CA6719439.html">part 1</a> and <a href="http://www.libraryjournal.com/article/CA6719808.html">part 2</a>). I found the following points made by speakers at the hearing particulary interesting:</p> <p>Lateef Mtima, of Howard University School of Law, suggested that the settlement would help the disenfranchised get access to books &#8212; and that copyright as a whole &#8220;should be an engine, not a brake on social development.&#8221; The lone librarian, from the University of Michigan, expressed a similar sentiment, arguing that “Broad social progress depends on being able to find, use, and re-use the scholarly record.”</p> <p>I find this perspective compelling, as it connects with my own view that copyright&#8217;s purpose is <em>not </em>to permanently protect the property of rights-holders, but rather to foster innovation and creativity. Put another way, copyright serves a social purpose beyond rewarding individuals; the creativity and innovation it encourages is supposed to benefit society as a whole.</p> <p>The concern expressed by the CDT representative, and others, is that there are potential privacy concerns with Google recording electronic access to books in a way that existing access methods (libraries, bookstores) do not is a potential problem, although in many ways it is an inevitable potential issue with any move to electronic texts. Still, I do share the concern that a single company (Google) stands to be the major gateway provider going forward &#8212; especially after recent missteps with regards to privacy on Google&#8217;s part.</p> <p>I found other arguments less interesting, including arguments that this &#8220;turns copyright on its head&#8221; (I don&#8217;t see it) or that this doesn&#8217;t effectively represent the class because some rights-holders haven&#8217;t participated (this is a criticism applicable to most any <a class="zem_slink" title="Class action" rel="wikipedia" href="http://en.wikipedia.org/wiki/Class_action">class action</a>).</p> <p>My biggest worry is that the barrier of entry for other to scan books as Google has is simply too great, and that Google will become the <em>de facto </em>for-profit curator of what should belong to the public as a whole. But is that concern enough to scuttle the settlement? I&#8217;m not sure.</p> <p>The judge indicated he will be taking his time ruling on this, due to the complexity involved. I would to, if I were him!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-31001_3-10456382-261.html?part=rss&amp;subj=news&amp;tag=2547-1_3-0-20">Google&#8217;s book settlement draws fire in court</a> (news.cnet.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.nytimes.com/2010/02/19/technology/19google.html%3Fpartner%3Drss%26amp%3Bemc%3Drss&amp;a=13285499&amp;rid=04127085-4ddf-4896-8fa5-9039f0a68a72&amp;e=b6e2a7509eb4c9a431d3fb633cd4b073">Judge Hears Arguments on Google Book System</a> (nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/02/who-supports-and-who-opposes-the-google-books-settlement/">Who supports and who opposes the Google Books settlement</a> (inpropriapersona.com)</li> </ul> "Who supports and who opposes the Google Books settlement" https://inpropriapersona.com/articles/who-supports-and-who-opposes-the-google-books-settlement/ Thu, 18 Feb 2010 19:45:43 +0000 a33947a72bf19b9b8f722d79e21ec41f <div style="float: right;"><object classid="clsid:d27cdb6e-ae6d-11cf-96b8-444553540000" width="400" height="300" codebase="http://download.macromedia.com/pub/shockwave/cabs/flash/swflash.cab#version=6,0,40,0"><param name="data" value="http://www.flickr.com/apps/video/stewart.swf?v=71377" /><param name="flashvars" value="intl_lang=en-us&amp;photo_secret=c183eee515&amp;photo_id=3353393320" /><param name="bgcolor" value="#000000" /><param name="allowFullScreen" value="true" /><param name="src" value="http://www.flickr.com/apps/video/stewart.swf?v=71377" /><param name="allowfullscreen" value="true" /><embed type="application/x-shockwave-flash" width="400" height="300" src="http://www.flickr.com/apps/video/stewart.swf?v=71377" allowfullscreen="true" bgcolor="#000000" flashvars="intl_lang=en-us&amp;photo_secret=c183eee515&amp;photo_id=3353393320" data="http://www.flickr.com/apps/video/stewart.swf?v=71377"></embed></object></div> <p>Norman Oder of the Library Journal is <a href="http://www.libraryjournal.com/article/CA6719439.html">covering the Google Books fairness hearing</a>, being held today. I found the list of opponents and supporters appearing at the hearing particularly interesting.</p> <p>Opponents include &#8220;Microsoft; Amazon.com; the Open Book Alliance; American Society of Journalists and Authors; Pamela Samuelson, University of California, Berkeley, law professor; Cindy Coh on behalf of the &#8216;Privacy Authors and Publishers;&#8217; representatives of Japanese and New Zealand authors; representatives of France and Germany; Consumer Watchdog; and the Internet Archive.&#8221;</p> <p>Oder adds:</p> <blockquote><p>Two of the 21 have dropped out, but two have been added. The state of Pennsylvania, also representing Massachusetts and Washington, will now be included; the states object to the provision for unclaimed funds. Also added is the literary agency Writers Representatives LLC, which objects on a wide variety of grounds.</p></blockquote> <p>It will be interesting to see exactly what arguments opponents make in court (they have roughly 5 minutes to present their points orally). Looking them over, it appears that, generally, opponents are invested more in the current rewards system for successful IP owners, although the inclusion of the Internet Archive and the Consumer Watchdog suggests this is not the complete story. The Internet Archive, for example, is worried about the Settlement favoring a single company (Google), as opposed to wanting to preserve the <em>status quo</em> &#8212; at least from what I gather so far.</p> <p>Supporters include &#8220;Center for Democracy &amp; Technology; the National Federation of the Blind; Sony; The Institute of Intellectual Property &amp; Social Justice at the Howard University School of Law; and University of Michigan Librarian Paul Courant, who represents Google&amp;apos;s first library scanning partner.&#8221;</p> <p><a href="http://www.flickr.com/photos/empact/1026799114/"><img class="alignleft" title="&quot;Book Scanner&quot; by Flickr user Ben Woosley, used under a Creative Commons Attribution-Share Alike 2.0 license" src="http://farm2.static.flickr.com/1283/1026799114_1b0cff67c6_m.jpg" alt="" width="240" height="180" /></a>It&#8217;s interesting to see Sony on this list, but then again, Sony has hardly benefited from the current publishing structure, as far as I can determine, so perhaps opening up access via Google (with whom they can partner, perhaps) would potentially benefit their e-reader plans.</p> <p>The Center for Democracy &amp; Technology generally speaks for the opening up of government and the protection of civil liberties, so it&#8217;s interesting to see that they support the settlement. The National Federation of the Blind makes sense, especially given current publishers tendencies to drag their feet on making electronic texts available, even to the blind. The only library representative, from hat I can tell, is a librarian from the University of Michigan.</p> <p>I&#8217;ll be curious to see the succinct version of the arguments each makes in court &#8212; such a condensed time for oral argument generally means that only the most important points (as determined by the speaker) get highlighted.</p> "Terms of use for application programming interfaces (TOS for APIs)" https://inpropriapersona.com/articles/terms-of-use-for-application-programming-interfaces-tos-for-apis/ Tue, 16 Feb 2010 18:30:18 +0000 ed046ccc0fc1f718e563d0a6437ea0e5 <p><a href="http://en.wikipedia.org/wiki/Application_programming_interface"></a><a href="http://www.flickr.com/photos/krisnelson/5605131326"><img class="alignleft" title="LinkedIn API TOS" src="http://farm6.static.flickr.com/5309/5605131326_ce4210e01f_m.jpg" alt="" width="234" height="240" /></a>Application Programming Interfaces (APIs) are the key to leveraging existing Web services, sites, and data (like <a class="zem_slink" title="Facebook" rel="homepage" href="http://facebook.com">Facebook</a>, <a class="zem_slink" title="Twitter" rel="homepage" href="http://twitter.com">Twitter</a>, or Google Maps) to create new and innovate services that users want to use. Users benefit from reusing their existing investment, developers benefit from not &#8220;recreating the wheel,&#8221; and business benefit from increased exposure and ubiquity (arguably, perhaps):</p> <blockquote><p>You see, the goal of &#8220;the cloud&#8221; isn’t simply putting all of your stuff into some stored space for access. It’s connecting your &#8220;stuff&#8221; &#8212; your apps, data, networks, etc. The how, if, why, when and where of that connecting (you could call it, for lack of a better word, &#8220;glue&#8221;) is wholly dependent on the terms of service around APIs.</p> <p>via <a href="http://www.cloudave.com/link/apis-tos-and-building-a-hooked-web">APIs, TOS, and building a hooked web | CloudAve</a>.</p></blockquote> <p>In that spirit, lets review the highlights of some terms of service (Tos), current as of February 15, 2009:</p> <h4>Twitter</h4> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 230px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/twitter"><img title="Image representing Twitter as depicted in Crun..." src="http://www.crunchbase.com/assets/images/resized/0000/2755/2755v30-max-250x250.png" alt="Image representing Twitter as depicted in Crun..." width="220" height="61" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p>The main point of the <a href="http://twitter.com/apirules">Twitter API&#8217;s terms of service</a> (which is surprisingly short!) is that you should get user permission first and not meddle with a Tweet&#8217;s content. Perhaps as a result of the very favorable set of terms, many applications access Twitter data, or leverage the Twitter stream.</p> <h4><a class="zem_slink" title="Flickr" rel="homepage" href="http://www.flickr.com">Flickr</a></h4> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 172px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/flickr"><img title="Image representing Flickr as depicted in Crunc..." src="http://www.crunchbase.com/assets/images/resized/0001/0830/10830v1-max-250x250.png" alt="Image representing Flickr as depicted in Crunc..." width="162" height="63" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p>In contrast to Twitter, the Flickr API has a long and extensive set of terms as part of <a href="http://www.flickr.com/services/api/tos/">its terms of service</a>. Like Twitter, none of these are too burdensome, although the pre-approval requirement for commercial apps could make basing a business on access to the Flickr API potentially problematic. Highlights include:</p> <ul> <li>Following all other Flickr and Yahoo terms of use</li> <li>Complying with user/owner terms and conditions (private flags, etc.)</li> <li>Have your own privacy policy</li> <li>Commercial applications have specific requirements and require specific approval from Flickr first (and may require payment)</li> <li>No warranty by Flickr, release of liability, etc. &#8212; plus some more legal terminology</li> </ul> <p>Despite the longer language, most of this is not particularly onerous (possibly excepting the commercial-approval requirement), and there are thus many applications making use of the Flickr API in some form or another.</p> <h4><a class="zem_slink" title="LinkedIn" rel="homepage" href="http://www.linkedin.com">LinkedIn</a></h4> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 163px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/linkedin"><img title="Image representing LinkedIn as depicted in Cru..." src="http://www.crunchbase.com/assets/images/resized/0001/1055/11055v1-max-250x250.png" alt="Image representing LinkedIn as depicted in Cru..." width="153" height="70" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p>The <a href="http://developer.linkedin.com/docs/DOC-1013">LinkedIn API terms of service</a> are much more detailed and more restrictive. As a result, I know of very few applications that interface with LinkedIn. In reference to their API terms, <a href="http://www.cloudave.com/link/apis-tos-and-building-a-hooked-web">Eric Norlin writes</a>:</p> <blockquote><p>LinkedIn is famous in some circles (no names) for not playing so nice with their API. According to their terms, you can’t store anything other than a profile or ID &#8212; which is to say you can’t store the most powerful/useful thing about LinkedIn &#8212; the connections. Beyond that, their TOS says that you can’t use their API and &#8220;compete&#8221; (though it never defines what that is). And, to put the icing on top, they gain the right to &#8220;audit&#8221; you if you use their API.</p></blockquote> <p>Neither Flickr nor Twitter explicitly limit your ability to &#8220;compete&#8221; if you use their API (though Flickr might, since they reserve the right to deny &#8220;commercial use&#8221;), nor do they limit storage of the data you pull via the API. Certainly from a business perspective, it makes good sense for LinkedIn to take this approach &#8212; connections are the core of their offering, really, so allowing a competitor to leverage those connections via their API is a concern. Nonetheless, setting firm limits on use by <em>everyone<em>, </em></em>potential competitor or not, severely limits the potential innovation of 3rd-party developers.</p> <h4>Facebook</h4> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 255px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/facebook"><img title="Image representing Facebook as depicted in Cru..." src="http://www.crunchbase.com/assets/images/resized/0000/4561/4561v1-max-250x250.png" alt="Image representing Facebook as depicted in Cru..." width="245" height="100" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p>Facebook has detailed, relatively easy-to-understand policies use of its APIs. Most of the complexity emerges from the fact that there are multiple ways for developers to interact with Facebook. Nonetheless, there are extensive examples and explanations provided by Facebook. There are a variety of limitations placed on developers, but this hasn&#8217;t hampered rampant Facebook application development. The biggest limitation &#8212; similar to LinkedIn&#8217;s restriction &#8212; is that Facebook data cannot be stored for more than 24 hours.</p> <p>Unlike LinkedIn, commercial application development is clearly encouraged, although there are extensive limitations on how those applications can interact with Facebook. Like Twitter, Facebook&#8217;s stream is now available, and applications are starting to leverage it. But like LinkedIn, connection data cannot be stored, even if it can be accessed while a user is connected.</p> <h4>Conclusion</h4> <p>Despite the extensive limitations of Facebook, it is one of the #1 platforms for which 3rd-party developers write applications. LinkedIn, by contrast, has not developed the same number of application developers. Twitter, which has very loose terms, has extensive developer support.</p> <p>In my opinion, developers write for Facebook because (1) that&#8217;s where the users are, first and (2) commercial applications are allowed and even encouraged. Developers write for Twitter because (1) it has users and (2) terms of use are straightforward. Similarly, Flickr has rich content and access is straightforward. LinkedIn, on the other hand, has a complex API and terms of service that appear limiting, especially when it comes to commercial use.</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:NYSE-floor.jpg"><img title="The floor of the New York Stock Exchange." src="http://upload.wikimedia.org/wikipedia/commons/thumb/0/01/NYSE-floor.jpg/300px-NYSE-floor.jpg" alt="The floor of the New York Stock Exchange." width="300" height="197" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/Image:NYSE-floor.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>Terms of use are critical. Most allow for the revocation of access if the API provider decides to do so. If that happens to you, you may have little recourse. Make sure you understand the terms before you build a business on top of someone else&#8217;s API.</p> <p>What does this mean in terms of &#8220;actually building things&#8221;? For <em>software</em> developers, not much. Technical utility of the API itself is much more important. For <em>business</em> developers, they can mean the difference between a neat toy and a profitable venture.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://blog.programmableweb.com/2010/01/30/35-apis-in-7-days-facebook-flickr-foursquare-google-twilio-twitter-yelp-and-youtube/?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%253A+ProgrammableWeb+%2528ProgrammableWeb%253A+Blog%2529">35 APIs in 7 Days: Facebook, Flickr, Foursquare, Google, Twilio, Twitter, Yelp, and YouTube</a> (programmableweb.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/12/making-a-personal-site-more-dynamic/">Making a personal site more dynamic</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=a15db3bb-b66c-4705-85c9-5ad8e728069a" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Research preview: the historical case for vaccination" https://inpropriapersona.com/articles/research-preview-the-historical-case-for-vaccination/ Sun, 14 Feb 2010 04:28:16 +0000 37e172cf3290455907a8791a02a32b7a <p><a href="http://www.flickr.com/photos/kb-a/61805186/"><img class="alignright" title="&quot;For Me???????&quot; by Flickr user TangoPango, used under a Creative Commons Attribution-Noncommercial 2.0 license" src="http://farm1.static.flickr.com/33/61805186_6f38638bb2_m.jpg" alt="" width="240" height="180" /></a>I am currently researching vaccination &#8212; especially smallpox vaccination &#8212; at the end of the 19th and beginning of the 20th centuries, and the connections of this historical period to today&#8217;s vaccination debates. More specifically, I&#8217;m looking at how the scientific and medical community presented and developed itself such that the public moved from rioting against vaccination (as in Milwaukee in 1894) to widespread, voluntary cooperation with vaccination (as in New York City in 1947). Achieving the level of cooperation found in New York required establishing the credibility of vaccination and, more generally, building the trust of the public in scientific medicine and in science itself.</p> <p>While my discussion may begin with historical cases, the modern repercussions are real. Unlike New York City in 1947, Americans today are not likely to line up to be vaccinated based on the recommendations of <a class="zem_slink" title="Public health" rel="wikipedia" href="http://en.wikipedia.org/wiki/Public_health">public-health</a> officials. The trust that scientific medicine had in 1947 has been seriously compromised. Some of this can be blamed on revelations of abuses such as the <a class="zem_slink" title="Tuskegee syphilis experiment" rel="wikipedia" href="http://en.wikipedia.org/wiki/Tuskegee_syphilis_experiment">Tuskegee Syphilis Study</a>, or allegations of conflicts of interest on the part of researchers influenced by money funneled through the pharmaceutical industry. Anecdotal evidence, alongside well-documented cases of vaccine side-effects, further undermines public confidence, especially as the occurrence of many serious disease is reduced (measles) or eliminated (smallpox).</p> <p>Regardless of which side of the vaccine debate one occupies, the rhetorical strategies for building credibility and trust are the same, and those strategies are exactly what I am interested in examining. Historically, how did scientific medicine&#8217;s approach lead to the adoption of vaccination as a key component of public health? And what can we learn from this history to help us critically evaluate the role of vaccination today?</p> <p>To help focus my analysis on the above areas, I divided the areas of dispute into four categories: science, trust, religion, and medicine.</p> <h4>Analytic Areas of Dispute</h4> <p><a href="http://www.flickr.com/photos/wenzday01/4332780839/"><img class="alignleft" title="&quot;Stack&quot; by Flickr user wenzday01, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm5.static.flickr.com/4070/4332780839_5bbe4c9494_m.jpg" alt="" width="240" height="159" /></a>To help focus my analysis of how vaccination became accepted as a key component of public health, I am planning to divided the areas of historical dispute into four main categories: science, trust, religion, and medicine.</p> <p>According to my scheme, a scientific dispute falls more-or-less within the boundaries of generally accepted science (of the time.) For example, arguments that vaccines simply do not work to protect a person against a target disease, that vaccines cause new problems or side effects (like autism), or that vaccines actually cause the target disease instead of preventing it.</p> <p>Trust &#8212; a complex issue that I might spend more time on than the other areas &#8212; can sometimes be related to disputes about science or evidence, but generally involves a loss of confidence in government or other institutions. One can see this today on anti-vaccination Web sites, where opponents of vaccination argue that the government, scientists, and the medical industry are lying to the public, generally because they are profiting by selling vaccines. A failure of trust moves the dispute outside of standard scientific disagreement, but can sometimes be restored by recourse to independent review, additional studies, or other approaches deeply related to scientific methodology.</p> <p><a href="http://www.flickr.com/photos/impactmatt/502363271/"><img class="alignright" title="&quot;desperate.prayer&quot; by Flickr user impactmatt, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm1.static.flickr.com/215/502363271_72597af8e0_m.jpg" alt="" width="240" height="160" /></a>Religion is another category of contention. In some cases, it can manifest itself in so-called “philosophical” objections to vaccination, but the main point is that this category encompasses essentially irrational beliefs that cannot be effectively countered by scientific means or improved trust. For example, some people argue that their religion forbids putting vaccines into their bodies. Others may simply not “believe” in modern, Western medicine, and instead favor naturopathic or similar approaches. Others may feel disease is “God’s will,” and that to vaccinate people goes against this.</p> <p>A final category of disagreement revolves are medical issues. An individual may resist vaccination because they have a compromised immune system, are allergic to the vaccine, and so on. (Interestingly, in the contemporary United States, this is the only category of disagreement that is constitutionally mandated as an exception to mandatory vaccination, although many state laws offer additional exemptions).</p> <h4>Methods of Resistance</h4> <p>My next step is to look at the ways people have resisted vaccination. I have  identified five so far: passive resistance, active legal resistance, active semi-legal resistance, active attack, and group opposition.</p> <p><a href="http://www.flickr.com/photos/jessandcolin/2728920224/"><img class="alignleft" title="&quot;Passive Resistance&quot; by Flickr user Jess and Colin, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm4.static.flickr.com/3207/2728920224_c6be1bc0bf_m.jpg" alt="" width="240" height="160" /></a>Passive resistance may include simply not getting vaccinated, and often occurs when the perceived “cost” of getting vaccinated is higher than the “cost” of non-vaccination. Active legal resistance may involve seeking an exemption within both the spirit and the letter of the law, filing a lawsuit (as in <a href="http://scholar.google.com/scholar_case?case=16169198038706839183"><em>Jacobson v. Massachusetts</em></a>, a key 1905 Supreme Court case that established the constitutionality of mandatory vaccination programs), or lobbying the legislature to change the law. Active semi-legal resistance includes home schooling children to avoid required vaccination, or lying to get a religious exemption under the law. Active refusal may involve “civil disobedience” or even physically attacking doctors. Finally, group involvement means connecting with other resistors, including forming anti-vaccination leagues, creating anti-vaccination Web sites (in more modern times), or even physical confrontations at a group level, such as the rioting in Milwaukee in 1896.</p> <h4>My Research Path</h4> <p><a href="http://www.flickr.com/photos/adrianclarkmbbs/3041954566/"><img class="alignright" title="&quot;2008.11.12 - The letter&quot; by Flickr user a.drian, used under a Creative Commons Attribution-No Derivative Works 2.0 license" src="http://farm4.static.flickr.com/3218/3041954566_a58919a9f7_m.jpg" alt="" width="160" height="240" /></a>Going forward, my research will involve three distinct approaches. My first focus is on how the exemptions to mandatory vaccination &#8212; originally non-existent, but later enshrined in many states&#8217; public-health laws &#8212; have been critical to maintaining public cooperation, and how such exemptions may be calibrated to foster such cooperation without undermining the potential benefits of the so-called &#8220;herd immunity.&#8221; Second, I intend to investigate and discuss the historical shift in perception of vaccination that led from rioting by vaccine resistors in 1896 Milwaukee, to limited legal resistance in 1904 Massachusetts, to virtually complete public cooperation in 1947 New York. And finally &#8212; building on my suggestion that rhetorical strategies by proponents of scientific medicine have been key &#8212; I intend to look at these strategies as utilized by both vaccine proponents and opponents from the late 1800s to today.</p> <h4>You</h4> <p>Thoughts? Reactions? Comments? Either <a href="https://inpropriapersona.com/contact/">contact me personally</a> or leave a note in the comments below. Any suggestions or ideas about this research project would be very much appreciated!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.kevinmd.com/blog/2010/02/patients-receive-vaccines-doctors.html">Not enough patients receive vaccines and what doctors can do about it</a> (kevinmd.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20120515161241/http://scienceblogs.com/insolence/2009/12/anti-vaccine_not_autism_activism.php">Anti-vaccine activism, not autism activism</a> (scienceblogs.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20100217043721/http://www.cbc.ca:80/health/story/2010/02/12/mumps-new-york.html?">Mumps outbreak in U.S. exceeds 1,500 cases</a> (cbc.ca)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/12/scientists-choose-citations-for-discriminatory-reasons/">Scientists choose citations for &#8220;discriminatory&#8221; reasons</a> (inpropriapersona.com)</li> </ul> "Should police need probable cause to request mobile-phone location data?" https://inpropriapersona.com/articles/should-police-need-probable-cause-to-request-mobile-phone-location-data/ Fri, 12 Feb 2010 06:55:54 +0000 f226dc6ea4d66fa8aeab7d8555d6c6a0 <p><a href="http://www.flickr.com/photos/fensterbme/2243527026/"><img class="alignright" title="&quot;Keypad&quot; by Flickr user fensterbme, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" alt="" src="http://farm3.static.flickr.com/2263/2243527026_bbd8c63e53_m.jpg" width="240" height="165" /></a>There are currently no firm standards on the kinds of <a class="zem_slink" title="Fourth Amendment to the United States Constitution" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution" rel="wikipedia">Fourth Amendment</a> protections that should apply to mobile-phone tracking data. This is becoming an issue as GPS and other tracking technologies have been added to cell phones to satisfy E911 requirements (to find callers in emergencies), and as police agencies have discovered the potential benefits of cell-phone location data:</p> <blockquote><p>On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices. In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no &#8220;<a class="zem_slink" title="Expectation of privacy" href="http://en.wikipedia.org/wiki/Expectation_of_privacy" rel="wikipedia">reasonable expectation of privacy</a>&#8221; in their&#8211;or at least their cell phones&#8217;&#8211;whereabouts. U.S. Department of Justice lawyers say that &#8220;a customer&#8217;s Fourth Amendment rights are not violated when the phone company reveals to the government its own records&#8221; that show where a mobile device placed and received calls.</p> <p>via <a href="http://news.cnet.com/8301-13578_3-10451518-38.html">Feds push for tracking cell phones | Politics and Law &#8211; CNET News</a>.</p></blockquote> <p>Magistrate Judge Lisa Lenihan wrote the <a href="http://www.eff.org/files/filenode/celltracking/criminalapplicationorder_finalopinion.pdf">lower-court opinion</a> [PDF], which was signed on to by four other magistrate judges. The lower court emphasized the importance of requiring a <a class="zem_slink" title="Probable cause" href="http://en.wikipedia.org/wiki/Probable_cause" rel="wikipedia">probable-cause</a> standard for accessing location data &#8212; the same standard used for <a class="zem_slink" title="Search warrant" href="http://en.wikipedia.org/wiki/Search_warrant" rel="wikipedia">search warrants</a> generally &#8212; and not a &#8220;articulable, reasonable belief&#8221; standard used to obtain so-called &#8220;<a class="zem_slink" title="Pen register" href="http://en.wikipedia.org/wiki/Pen_register" rel="wikipedia">pen-register</a>&#8221; data (information that includes the phone number called, when, and for how long).</p> <p>Pen-register data is subject to a lower standard because the courts consider that individuals knowingly provide the data to a third party (the telephone company) and thus have a limited expectation of privacy for that information (vs. their actual telephone conversations, for example, which have a higher level of protection due to a higher expectation of privacy).</p> <p>The lower-court wrote, essentially, that location date can potentially reveal &#8220;extraordinarily personal and sensitive&#8221; information about a person without the involvement of that person (or their attorney) in the proceedings (it is &#8220;ex parte,&#8221; in the language of the court). Balancing the interests, says the court, means that a probable-cause standard is most appropriate. This balancing, along with detailed statutory interpretation, forms the core of the court&#8217;s analysis.</p> <p>One weakness I see is that the court does not do a deep analysis of a &#8220;reasonable expectation of privacy&#8221; and the issue that giving that information to third parties reduces the expectation of privacy, noting only the the E911 legislation suggests that individuals have, and should have, a strong privacy expectation in their location data.</p> <p>I think this is a good, balanced decision, but I wish it had dealt more with the potential attack on it due to the third-party data issue. I&#8217;ll be interested to see what happens at the 3rd Circuit (I expect it to be overturned, unfortunately).</p> <p><em>Update as of July 30, 2013 from the Fifth Circuit on a similar case: </em><a href="http://www.nytimes.com/2013/07/31/technology/warrantless-cellphone-tracking-is-upheld.html">Warrantless Cellphone Tracking Is Upheld</a>.</p> "You do not get an “A for effort” with copyright" https://inpropriapersona.com/articles/you-do-not-get-an-a-for-effort-with-copyright/ Mon, 08 Feb 2010 08:32:44 +0000 ec39185d5fc24a396602d684eb9b4ebd <p><a href="http://www.flickr.com/photos/jaxxon/1752710570/"><img class="alignleft" title="&quot;Yellow Pages&quot; by Flickr user jaxxon, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm3.static.flickr.com/2260/1752710570_d3dd0de85a_m.jpg" alt="" /></a>In reaction to more claims that copyright exists to protect creators because of the effort they&#8217;ve put into their work, Mike Masnick of Techdirt <a href="http://techdirt.com/articles/20100204/1601318056.shtml">points us</a> to a Supreme Court case that clearly says otherwise:</p> <blockquote><p>It may seem unfair that much of the fruit of the compiler&#8217;s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not &#8220;some unforeseen byproduct of a statutory scheme.&#8221; &#8230; It is, rather, &#8220;the essence of copyright,&#8221; &#8230; and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but &#8220;to promote the Progress of Science and useful Arts.&#8221;</p> <p>from <em>Feist Publications v. Rural Telephone,</em> <a href="http://scholar.google.com/scholar_case?case=1195336269698056315">499 U.S. 340</a> (1991).</p></blockquote> <p><a href="http://www.flickr.com/photos/uk_parliament/2757120668/"><img class="alignright" title="&quot;House of Lords Library&quot; by Flickr user UK Parliament, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license " src="http://farm4.static.flickr.com/3033/2757120668_f1086d12fe_m.jpg" alt="" width="132" height="240" /></a>The history of copyright is complex, but in my research to the disputes before and after the <a href="http://en.wikipedia.org/wiki/Statute_of_Anne">Statute of Anne</a> (also known as the &#8220;Act&#8221;) passed the British Parliament in 1710, copyright &#8212; when it finally existed &#8212; was not &#8220;theft,&#8221; but &#8220;infringement&#8221; of one sort or another, at least under the law. Still, there were arguments then on this that were quite similar to the ones we have today, and claims of &#8220;piracy&#8221; of intellectual property have a long history.</p> <p>Before the Act (but after the invention of movable type), <em>printers</em> were granted exclusive &#8212; and often effectively perpetual &#8212; monopoly rights in England to control reprinting and copying of books. (There were no such laws that applied in the United States until much later. America was the source of many illicit, although not illegal, reprints of British works.)</p> <p>The Act changed this, and put rights in the hands of authors for the first time (although printers could purchase the rights from them), but only for a limited duration.</p> <p><a href="http://www.flickr.com/photos/nitsrejk/126982663"><img class="alignleft" title="&quot;Moveable type&quot; by Flickr user -Kj., used under a Creative Commons Attribution-Noncommercial 2.0 license" src="http://farm1.static.flickr.com/48/126982663_01500881cb_m.jpg" alt="" width="240" height="160" /></a>Printers nonetheless tried to argue for a perpetual copyright, saying that common-law precedents from before the Act should take over once author&#8217;s rights expired. Instead of falling into the public domain, the rights should go to the printers.</p> <p>While this was based on English common law, it was also grounded in an idea that so-called &#8220;natural law&#8221; put creations of the mind on the same footing as tangible or real property, and thus that ownership should be perpetual. Much of this drew from theories like those of English philosopher <a href="http://plato.stanford.edu/entries/locke/">John Locke</a> that &#8220;sweat of the brow&#8221; <em>created</em> property rights. That is, by investing effort &#8212; farming, hunting, manufacturing &#8212; an individual thereby gained ownership rights. This is the same philosophical strand that still emerges today in very similar arguments, but that has been firmly rejected under U.S. law.</p> <p>In England, the House of Lords rejected this argument in <em>Donaldson v. Beckett</em>, <a href="http://en.wikipedia.org/wiki/Donaldson_v_Beckett">1 Eng. Rep. 837</a> (1774), holding that the Act extinguished even the possibility of such a perpetual copyright (if it had even ever existed, which is still debated). The U.S. Supreme Court held similarly in its first copyright case, <em>Wheaton v. Peters</em>, <a href="http://supreme.justia.com/us/33/591/case.html">33 U.S. 591</a> (1834), and has continued to do so.</p> <p><a href="http://www.flickr.com/photos/olivander/286076777/"><img class="alignright" title="&quot;From where I sit&quot; by Flickr user Olivander, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm1.static.flickr.com/101/286076777_d47af85dd3_m.jpg" alt="" width="240" height="172" /></a>The goal of copyright is not to reward creators for their efforts. Copyright does not come into being because authors labor over their novels. Instead, the point is to create an incentive to create, while leaving open the eventual <em>public</em> benefit:</p> <blockquote><p>The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of &#8220;science and the useful arts&#8221; through wide public access to works in the &#8220;public domain.&#8221;</p> <p>via <a href="http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml">A History of Copyright in the United States</a> from the Association of Research Libraries.</p></blockquote> <p>Although there is ongoing disagreement still if this is the way copyright <em>should </em>function, nonetheless under the law as it now stands, investing effort into a creation does not create a property right akin to the rights in tangible objects. However natural and fair it may seem, rewarding <em>effort</em> alone is neither the goal nor the basis of copyright law.</p> "Dear Starbucks and AT&T: fix your WiFi!" https://inpropriapersona.com/articles/dear-starbucks-and-att-fix-your-wifi/ Sun, 07 Feb 2010 16:00:19 +0000 82d5bd3baa3c1ee609182a7f0ed1ec98 <p><a href="http://www.flickr.com/photos/lady-madonna/4232643329/"><img class="alignleft" title="&quot;Starbucks card&quot; by Flickr user Lady Madonna, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0" src="http://farm5.static.flickr.com/4071/4232643329_82b462a4a6_m.jpg" alt="" width="240" height="180" /></a>Technology on the road has a reputation for being finicky, whether &#8220;on the road&#8221; means the other side of the world or just down the street.</p> <p>Some of this difficulty is unavoidable when organizations are dealing with people connecting with a wide variety of equipment in a wide variety of circumstances. (Think Mac OS X and Apple&#8217;s limited hardware vs. Windows dealing with the vagaries of PC hardware.) But other technology challenges are easily remedied through decent design and forethought.</p> <div class="sidebox"> <p><strong>A few thoughts on what could be changed:</strong></p> <ol> <li>Ideally, the login should simply be via one&#8217;s Starbucks.com account, not some intermediate AT&amp;T one.</li> <li>Alternatively, the correct AT&amp;T login should be co-branded with Starbucks so customers know what to use.</li> <li>There should be a clear distinction between registering for an account and logging in. (Hint: both involve connecting to the <a class="zem_slink" title="Internet" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet">Internet</a>!)</li> <li>If one has a Starbucks card in hand, that should <em>always</em> work to login, regardless of accounts or logins.</li> <li>If &#8220;validating&#8221; an email address is so critical (why?), then there needs to be a way to access an email account while at Starbucks. To force customers to go elsewhere defeats the purpose and drives away customers. Perhaps a 10-minute window would be sufficient?</li> </ol> </div> <p>Case in point: connecting to the AT&amp;T WiFi at Starbucks. I am an irregular Starbucks customer &#8212; but enough of one to have a pre-paid Starbucks card. Occasionally I use wireless provided by AT&amp;T to check my email or do some reading while I drink my coffee and, in fact, the consistent existence of wireless is a reason I choose Starbucks.</p> <p>(I suspect this use makes me pretty much the target audience for Starbucks, even if my technical knowledge &#8212; I am a former Web developer and systems administrator &#8212; perhaps gives me more familiarity with the underlying technology and design issues than some other customers.)</p> <p>I have no trouble connecting to the 802.11 signal (&#8220;attwifi&#8221;). (My technology works fine.) It isn&#8217;t until I actually am connected that the trouble starts.</p> <p>First, I&#8217;m greeted by a Starbucks screen with an orange AT&amp;T bar at the top. There&#8217;s a box for a user name, a drop down confusingly labeled &#8220;Make a Selection,&#8221; a password box, a checkbox for me to agree to term of service &#8212; and then two buttons, one labeled &#8220;Connect to the Internet&#8221; and the other labeled &#8220;Log In.&#8221;</p> <p><a href="http://res.cloudinary.com/krisnelson/image/upload/v1514416897/starbucks-att-1_t1wxgg.png"><img class="size-full wp-image-1859 alignright" title="starbucks-att-1" src="http://res.cloudinary.com/krisnelson/image/upload/v1514416897/starbucks-att-1_t1wxgg.png" alt="" width="480" height="56" /></a>OK, well, I&#8217;ve done this before (though it&#8217;s been a while), and I believe I already have an account. So even though what I really want to do is connect to the Internet, I&#8217;m going to try filling in my login info and clicking log in first.</p> <p>So I put in my user name, then hit the dropdown box. There are 14 options, none of which say &#8220;Starbucks.&#8221; Hmm. Well, this is AT&amp;T WiFi, so I guess I need to select that one. But wait, there&#8217;s three choices labeled AT&amp;T! Which one am I? I suppose I&#8217;ll just try the first one, and see if it works.</p> <p>So I put in my password (I think it&#8217;s the right password &#8212; it&#8217;s been a while since I last used the service), accept the terms, and click on the log in box (I hope that&#8217;s the right thing to do).</p> <p>Instead of connecting to the Internet, I instead get a screen telling me that my email address hasn&#8217;t been validated, and I won&#8217;t be allowed to continue until it is. Find, it looks like I can send a validation email from this screen &#8212; but wait, I can&#8217;t connect to the Internet, so how am I supposed to see the email?</p> <p><a href="http://res.cloudinary.com/krisnelson/image/upload/v1514416895/starbucks-att-2_ijlyyc.png"><img class="size-full wp-image-1860 alignright" title="starbucks-att-2" src="http://res.cloudinary.com/krisnelson/image/upload/v1514416895/starbucks-att-2_ijlyyc.png" alt="" width="462" height="163" /></a>The screen also suggests that I must not have validated my email address properly before &#8212; but as far as I can remember, I&#8217;ve never been sent a validation email from AT&amp;T anyway! So I guess, <em>despite being a Starbucks customer</em>, I don&#8217;t get to use the WiFi today, and won&#8217;t be able to until I get home and track down this validation email? What if it never comes? Do I have to return to Starbucks to try asking for another one?</p> <p>Perhaps I logged into the wrong account. After all, I am a <em>Starbucks</em> customer, not an AT&amp;T one, right? And I have a valid pre-paid Starbucks card (which I just used to buy my cooling coffee.) I&#8217;ll try going to Starbucks.com to see if there&#8217;s something about a Starbucks account or another way to login or access my account.</p> <p><a href="../wp-content/2010/02/starbucks-att-3.png"><img class="alignleft size-full wp-image-1861" title="starbucks-att-3" src="http://res.cloudinary.com/krisnelson/image/upload/v1514416893/starbucks-att-3_vyi9gp.png" alt="" width="264" height="204" /></a>Starbucks.com only partly loads (why?!), but at the bottom there&#8217;s a link to &#8220;your account,&#8221; so I&#8217;ll try that.</p> <p>Great, a login screen that&#8217;s branded with the store I&#8217;m actually in! My login works, but I&#8217;m not presented with much about WiFi. Still, WiFi is mentioned near &#8220;Account Management,&#8221; so I&#8217;ll try that.</p> <p>OK, now on the left is &#8220;WiFi Info,&#8221; which sounds promising. Now I get a link to &#8220;create an AT&amp;T account,&#8221; so I guess I&#8217;ll try that (do I already have one?) It says my prepaid card is my &#8220;ticket to free and easy Wireless access at Starbucks,&#8221; so that&#8217;s a good sign.<a href="https://inpropriapersona.com/wp-content/uploads/2010/02/starbucks-att-5.png"><img class="alignright size-full wp-image-1876" title="starbucks-att-5" src="https://inpropriapersona.com/wp-content/uploads/2010/02/starbucks-att-5.png" alt="" width="171" height="68" /></a></p> <p>Unfortunately, the link appears to be broken. Hmm. I see two other laptops here online, so I guess I&#8217;ll try reloading. OK, that worked, now I get a screen &#8220;Starbucks Card Rewards with WiFi.&#8221; That sort of works. Now at least I have a &#8220;Sign Up&#8221; button to try.</p> <p><a href="http://res.cloudinary.com/krisnelson/image/upload/v1514416890/starbucks-att-6_fg6bct.png"><img class="alignright size-full wp-image-1873" title="starbucks-att-6" src="http://res.cloudinary.com/krisnelson/image/upload/v1514416890/starbucks-att-6_fg6bct.png" alt="" width="304" height="118" /></a>This looks positive. I can sign in with my account on Starbucks.com. That sounds good, since I know that work, right? I just used it, after all.</p> <p>Unfortunately, it doesn&#8217;t work. When I try to put my information in, I get the confusing response &#8212; presented in red as an error message &#8212; that I already have an account. Um, yeah, I know I already have a Starbucks account, that&#8217;s what I&#8217;m using! (Oh, you mean, I already have an AT&amp;T account? Why don&#8217;t you say so! And that isn&#8217;t very helpful.)<a href="http://res.cloudinary.com/krisnelson/image/upload/v1514416888/starbucks-att-7_od8dcb.png"><img class="alignleft size-full wp-image-1874" title="starbucks-att-7" src="http://res.cloudinary.com/krisnelson/image/upload/v1514416888/starbucks-att-7_od8dcb.png" alt="" width="261" height="101" /></a></p> <p>Now what?</p> <p>I give up and go home, not wanting to return to Starbucks again, and not interested in dealing with AT&amp;T ever again.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=988ccc03-69f9-4502-863a-e658731d2376" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Retention of transactional Web browsing data" https://inpropriapersona.com/articles/retention-of-transactional-web-browsing-data/ Sat, 06 Feb 2010 08:40:40 +0000 bef6a50957dc093ee4fb5365865e1cca <p><a href="http://www.flickr.com/photos/timdorr/41186909/"><img class="alignright" title="&quot;Lots o' Ports&quot; by Flickr user Tim Dorr, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm1.static.flickr.com/22/41186909_57d42684be_m.jpg" alt="" width="227" height="240" /></a>There has always been a lower standard for access by law enforcement to so-called &#8220;transactional data.&#8221; The theory is that data voluntarily provided to a company in order to complete a transaction &#8212; like a phone number given to a phone company for the purposes of calling someone &#8212; are not subject to the same expectation of privacy as the actual content of that telephone conversation.</p> <p>After all, you voluntarily provided the information, knowing that someone else would learn it, use it, and possibly store it. Thus, your level of Fourth Amendment protection is lessened, and no warrant is required (although typically a subpoena or similar legal document is used).</p> <p>This concept is well-established in the realm of telephony: since 1986, <a href="http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=47&amp;PART=42&amp;SECTION=6&amp;YEAR=2002&amp;TYPE=TEXT">47 C.F.R. § 42.6</a> has required telephone carriers to maintain such transactional records for 18 months.</p> <p>So it should come as no surprise that the <a class="zem_slink" title="Federal Bureau of Investigation" rel="geolocation" href="http://maps.google.com/maps?ll=38.894465,-77.024503&amp;spn=0.01,0.01&amp;q=38.894465,-77.024503 (Federal%20Bureau%20of%20Investigation)&amp;t=h">FBI</a> has been seeking similar retention of transactional data for Internet communications:</p> <blockquote><p>The FBI is pressing Internet service providers to record which Web sites customers visit and retain those logs for two years.</p> <p>via <a href="http://news.cnet.com/8301-13578_3-10448060-38.html">FBI wants records kept of Web sites visited | Politics and Law &#8211; CNET News</a>.</p></blockquote> <p>Exactly what would constitute such data is less, clear, however. Would it include <a class="zem_slink" title="IP address" rel="wikipedia" href="http://en.wikipedia.org/wiki/IP_address">IP addresses</a> on both ends, times, number and length of connections? This information, while potentially vast, can be retained relatively easily and requires little work to access. It is very similar to the data retained for telephone conversations, since this kind of information is required to be exchanged with intermediaries (like <a class="zem_slink" title="Internet service provider" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet_service_provider">ISPs</a>) in order to use the Internet. (That many people don&#8217;t know this might, however, speak to the question of reasonable <em>expectations </em>of privacy.)</p> <p>Much more problematic and revealing would be actual Web pages viewed. Arguably, these are shared openly, but accessing them does require packet inspection beyond the surface, and equally most people likely have a greater expectation of privacy in that information. But should they? Most sites log their visits, and tie in IP and cookie data to identify individuals as best they can. Thus, is this data really private? Do you really expect it to be? Should you?</p> <p>Specific and detailed privacy laws targeting modern technology would help, but for now we&#8217;re working with what we&#8217;ve got. And that makes it very likely that the FBI will get what they want &#8212; and perhaps that&#8217;s OK? <a class="zem_slink" title="Privacy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Privacy">Privacy rights</a> and the Fourth Amendment are always about balancing, not absolutes &#8212; so perhaps this is an appropriate balance to deal with computer crimes without over-burdening everyone?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://yro.slashdot.org/story/10/02/05/2015205/FBI-Pushing-For-2-Year-Retention-of-Web-Traffic-Logs?from=rss">FBI Pushing For 2 Year Retention of Web Traffic Logs</a> (yro.slashdot.org)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/01/fbi-technically-violated-wiretap-laws-for-years/">FBI &#8220;technically violated&#8221; wiretap laws for years</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2010/01/applying-the-fourth-amendment-to-data-in-the-cloud/">Applying the Fourth Amendment to data in the cloud</a> (inpropriapersona.com)</li> </ul> "Does an open WiFi signal reduce your 4th Amendment protections?" https://inpropriapersona.com/articles/does-an-open-wifi-signal-reduce-your-4th-amendment-protections/ Thu, 04 Feb 2010 20:04:37 +0000 4376b76e2ac8b2d308b6f26dcceb5bab <p><a href="http://www.flickr.com/photos/nimariel/2650675938/"><img class="alignright" title="&quot;4th amendment&quot; by Flickr user nimariel, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm4.static.flickr.com/3183/2650675938_4b0b3bee91_m.jpg" alt="" width="240" height="160" /></a>Thomas O&#8217;Toole, writing on the <a href="http://pblog.bna.com/techlaw/">E-Commerce and Tech Law Blog</a>, points to an interesting case recently decided in Oregon:</p> <blockquote><p>In <a href="http://docs.google.com/viewer?url=http%3A%2F%2Fpub.bna.com%2Feclr%2F08cr468_012810.pdf "><em>United States v. Ahrndt</em></a>, No. 08-cr-468 (D. Ore. Jan. 28, 2010), a federal trial court held that a <a class="zem_slink" title="Child pornography" rel="wikipedia" href="http://en.wikipedia.org/wiki/Child_pornography">child pornography</a> suspect had no <a class="zem_slink" title="United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/United_States_Constitution">constitutionally</a> protected privacy right in the files found on his personal computer, stored in a shared <a class="zem_slink" title="ITunes Store" rel="homepage" href="http://www.apple.com/itunes/">iTunes</a> folder fed by a Limewire account, accessible by a neighbor who was piggybacking on his unsecured <a class="zem_slink" title="Wireless network" rel="wikipedia" href="http://en.wikipedia.org/wiki/Wireless_network">wireless network</a>.</p> <p>via <a href="http://pblog.bna.com/techlaw/2010/02/court-finds-constitutional-significance-in-defendants-failure-to-passwordprotect-home-wireless-netwo.html">TechLaw: Court Finds Constitutional Significance in Defendant&#8217;s Failure to Password-Protect Home Wireless Network</a>. (I recommend you read the whole piece by Thomas O&#8217;Toole.)</p></blockquote> <p>The neighbor connected to the open wireless account, opened iTunes, and found child pornography shared by the (now convicted) defendant. A police officer who responded to her call guided her through opening one shared file, and saw child pornography. The police them proceeded to gather details of exactly who&#8217;s network it was and obtained a warrant &#8212; in turn discovering more child pornography.</p> <p>The defendant argued it was an illegal search by the police and the warrant should be thrown out, since the initial finding by the officer violated his 4th amendment <a class="zem_slink" title="Expectation of privacy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Expectation_of_privacy">reasonable expectation of privacy</a>.</p> <p>The court said, no, if you leave your wireless router unsecured, your expectation of privacy is much lower. People routinely use unsecured networks of others, says the court, and setting a password to prevent this is clearly laid out in the instructions (in this case, Belkin&#8217;s). What&#8217;s more, if you have iTunes sharing turned on, you shouldn&#8217;t expect those files broadcast to everyone on your network to be private.</p> <p>I agree with O&#8217;Toole that none of this breaks new Constitutional ground. It all seems perfectly reasonable to me, and it seems like the judge &#8220;gets it&#8221; with regard to technology (nice to see).</p> <p>It does also imply that an open wireless network is not like a closed (but unlocked) door. Accessing it is <em>not </em>equivalent to breaking and entering. (I think this is the correct view of things, myself.)</p> <p>O&#8217;Toole ends with a warning that you should password-protect your network if you want 4th Amendment protections. I would add that, if you choose to share your wireless network, then make sure you secure your computers within that network. The lack of a password for the network was only one factor &#8212; sharing iTunes files publicly also contributed.</p> <p>Extending this argument, if you have private files, you should be able to get 4th Amendment protection by password-protecting them at any level (encryption is a practical protection, but shouldn&#8217;t be necessary for legal protection &#8212; if one extends from this ruling). Thus, you could share your iTunes library and &#8212; provided you password protect your financial documents &#8212; still have Constitutional protections for those documents (but not the music or videos you are sharing).</p> <p>Seems common sensical, but that doesn&#8217;t mean that it&#8217;s necessarily &#8220;the law&#8221; everywhere! This was only a federal district court in Oregon, after all, and isn&#8217;t binding precedent (though it may be persuasive). But it&#8217;s an intelligent decision.</p> "Can a teaching-focused law school fit into a public research university?" https://inpropriapersona.com/articles/can-a-teaching-focused-law-school-fit-into-a-public-research-university/ Tue, 02 Feb 2010 08:05:35 +0000 446052a334d05c544c6f3850f4c07c8f <p><a href="http://www.flickr.com/photos/41002268@N03/4627786887/in/photostream/"><img class="alignright" title="&quot;Why-te board&quot; from Flickr user Carbon Arc, used under a Creative Commons license." src="http://farm4.static.flickr.com/3390/4627786887_299d687c03_m.jpg" alt="" width="240" height="180" /></a>According to <a href="http://www.signonsandiego.com/news/2010/jan/28/ucsd-looking-law-school/">news reports</a> (and a <a href="http://www.prnewswire.com/news-releases/local-educational-institutions-form-joint-committee-to-consider-establishment-of-uc-san-diego-school-of-law-82730992.html">press release</a>), the University of California, San Diego (<a href="http://www.ucsd.edu">UCSD</a>), is considering a new &#8220;arrangement&#8221; with <a href="http://www.cwsl.edu">California Western School of Law</a> that might well turn it into the newest law school in the UC system (after Irvine). This was tried before in the early 1980s, but failed &#8212; this time it would be done with no public money, making it only sort of a state school (not that <a href="http://www.uchastings.edu">UC Hastings</a>, for example, gets much state support these days either).</p> <p>This wouldn&#8217;t add a law school to the area, of course, but it might increase the stature and impact of Cal Western. There is, apparently, concern that the &#8220;teaching focus&#8221; of Cal Western won&#8217;t fit in with UCSD&#8217;s status as a &#8220;research university&#8221;:</p> <blockquote><p>Bill Hodgkiss, chairman of UCSD’s faculty senate, said he supports the concept but is curious how the details would be worked out.</p> <p>“The (California Western) faculty are primarily focused on teaching law, and UCSD is fundamentally a research university,” Hodgkiss said. “So we’re looking for those synergies between the school of law and other departments, and how the research component would evolve over time.”</p> <p>via <a href="http://www.signonsandiego.com/news/2010/jan/28/ucsd-looking-law-school/">UCSD looking at a law school &#8211; SignOnSanDiego.com</a>.</p></blockquote> <p>For purely selfish reasons &#8212; a lot of my work here at UCSD involves legal issues, and it would sure be nice to have a law school and its faculty backing me up &#8212; I think this is a great idea. But would it really be a problem for a research university like UCSD to incorporate a teaching-focused law school?</p> <p><a href="http://www.flickr.com/photos/benrussell/1477899923/"><img class="alignleft" title="&quot;Teacher&quot; by Flickr user ben110, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm2.static.flickr.com/1164/1477899923_5fb736f33c_m.jpg" alt="" width="240" height="240" /></a>I don&#8217;t think so, but then again, I consider (wrongly?) that at least part of my role here as a grad student at UCSD is to <span style="font-style: italic;">teach</span> and to learn to teach better &#8212; sure, research is key too, but aren&#8217;t we supposed to be teaching too? (I believe that&#8217;s what the 20,000+ undergrads here think they might like to get&#8230;)</p> <p>And regardless of how &#8220;teaching focused&#8221; Cal Western might be, a big part of being a lawyer is <span style="font-style: italic;">research </span>&#8212; so I doubt that faculty there is unfamiliar with the concept. Perhaps the real concern is about <span style="font-style: italic;">publication </span>by the faculty? After all, if UCSD faculty is promoted and tenured primarily based on publishing &#8212; and that&#8217;s the general accusation &#8212; then perhaps the concern is justified.</p> <p>Then again, UCSD has a (relatively new) business school. Are the faculty there really so focused on publishing? Or are they &#8212; like Cal Western &#8212; perhaps concerned with <span style="font-style: italic;">teaching </span>and the professional development of their students? Really, I think perhaps UCSD should consider their own commitment to teaching before they worry about Cal Western&#8217;s lack of commitment to &#8220;research.&#8221;</p> <p>This, I think, is especially true of anyone in the humanities or social sciences &#8212; we must justify our existence, and traditionally esoteric research disconnected from society is not the way to do it, but good teaching just might be part of the answer.</p> <p>Perhaps UCSD has more to gain from Cal Western than it realizes?</p> "Five sources of free photographs for your blog" https://inpropriapersona.com/articles/five-sources-of-free-photographs-for-your-blog/ Mon, 01 Feb 2010 06:30:33 +0000 774ab4c1117f0bfe571c275eb19d18d6 "Is the future of scholarship social? Should it be?" https://inpropriapersona.com/articles/is-the-future-of-scholarship-social-should-it-be/ Thu, 28 Jan 2010 21:31:02 +0000 7219dadd3a27b16e0e0b66981ab46fc9 <p><a href="http://www.flickr.com/photos/jiscinfonet/146799101/"><img class="alignright" title="&quot;Café Area Saltire Centre Glasgow Caledonian University&quot; by Flickr user jisc_infonet, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm1.static.flickr.com/45/146799101_1d3538261d_m.jpg" alt="" width="240" height="161" /></a>Reflecting on the release of <a class="zem_slink" title="Apple Inc." rel="geolocation" href="http://maps.google.com/maps?ll=37.33187,-122.029669&amp;spn=1.0,1.0&amp;q=37.33187,-122.029669 (Apple%20Inc.)&amp;t=h">Apple</a>&#8216;s iPad, David Weinberger suggests that it is a device focused on <em>consuming</em> content and not <em>producing </em>it, and argues that the true future of reading is to become more <em>social:</em></p> <blockquote><p>The future of reading blurs reading and writing. The future of reading is the networking of readers, writers, content, comments, and metadata, all in one continuous-on mash.</p> <p>via <a href="http://www.hyperorg.com/blogger/2010/01/28/the-ipad-is-the-future-of-the-past-of-books/">The iPad is the future of the past of books</a>.</p></blockquote> <p>Extending this thought into the realm of the university, Jim Milles questions scholars&#8217; desire for Weinberger&#8217;s vision of the future:</p> <blockquote><p>Apart from a small subset of blogger/scholars, that doesn’t seem to be happening at all.  Perhaps it’s due to the training that most law faculty receive now–not just the J.D., but the long, perfection-oriented dissertation process–but in my experience, law professors and other sociolegal scholars are extremely reluctant (if not phobic) about releasing to the public anything other than a fully fleshed-out article.</p> <p>via <a href="http://jimmilles.com/2010/01/28/the-future-of-reading-or-do-scholars-really-want-social-scholarship/#comment-11359">The Future of Reading, or Do Scholars Really Want “Social Scholarship”? « Buffalo Wings and Toasted Ravioli</a>.</p></blockquote> <p>As a budding scholar of law and history, I second Milles&#8217; observations. There are, as he points out, some bloggers who discuss their scholarship and work online, in an open fashion, but by far the vast majority of scholars I know and work with do not do this. Some in-progress scholarship makes it into <a href="http://www.ssrn.com">SSRN</a> in a draft form. Even more makes it online once it is actually published, although most of it remains behind subscription walls and is inaccessible except to other scholars (or dedicated readers who seek it out). But neither SSRN nor online journals encourage or facilitate the back-and-forth sharing of Weinberger&#8217;s vision of the future of reading as social.</p> <p>The relatively few scholars who post to blogs or other online systems that might facilitate &#8220;social scholarship&#8221; tend to post material of a more informal sort, including initial reactions to current events or hot topics of current discussion. Very few blog posts develop research or concepts in detail, and even fewer do so in a fashion that does not <em>react </em>to something current.</p> <p>In a sense, the social scholarship that does exist tends to be more like a cocktail party than a colloquium or even a conference presentation.</p> <p>Personally, this tends to be how I blog as well. The material I put online via my blog sometimes informs my larger research projects, but mostly I am focused on snippets of thoughts, initial reactions, and concepts I wish to capture for later.</p> <p>Partly this may be due to the form of blogging, or of reading online: shorter tends to work better, and hot and trending topics tend to attract more broad interest. (The down side of &#8220;<a class="zem_slink" title="Crowdsourcing" rel="wikipedia" href="http://en.wikipedia.org/wiki/Crowdsourcing">crowd sourcing</a>&#8220;?)</p> <p>I like to more fully develop, research, and think about my scholarship before I share it, and when I do share it, I tend to have a different, more specialized audience in mind. My online writing tends to consist of more assertions and fewer citations; my scholarship is the opposite.</p> <p>Is this just a &#8220;natural&#8221; consequence of different mediums? Would scholars be better off publishing in a more &#8220;social&#8221; (technologically social, that is) fashion? Is one way better than the other? And if social reading is the future &#8212; or <em>should be </em>the future &#8212; is the iPad a step in the wrong direction?</p> "Challenging the big two in legal research" https://inpropriapersona.com/articles/challenging-the-big-two-in-legal-research/ Tue, 26 Jan 2010 23:06:54 +0000 bfbcfa8f8913466f0eb7da119c79ee15 <p><a href="http://www.flickr.com/photos/quinnanya/3605597056/"><img class="alignright" title="&quot;Day 158: Diffusion of Knowledge&quot; by Flickr user quinn.anya, used under a Creative Commons Attribution-Share Alike 2.0 license" src="http://farm4.static.flickr.com/3564/3605597056_9b846ea851_m.jpg" alt="" width="240" height="160" /></a>There have been several new entrants to the legal research marketplace, including the now-established <a href="http://www.fastcase.com/">Fastcase</a>, along with free alternatives like <a href="http://www.altlaw.org">AltLaw</a> and <a href="http://www.findlaw.com">FindLaw</a>. Google recently entered the picture by adding legal cases (federal and state) to Google Scholar, and now Bloomberg (known for business-focused research tools) is experimenting with a new legal research product.</p> <p>Meanwhile, the &#8220;big two&#8221; &#8212; <a class="zem_slink" title="LexisNexis" rel="homepage" href="http://www.lexisnexis.com">LexisNexis</a> and <a class="zem_slink" title="Westlaw" rel="wikipedia" href="http://en.wikipedia.org/wiki/Westlaw">Westlaw</a> &#8212; are not standing still. Both are <a href="http://www.abajournal.com/news/article/exclusive_inside_the_new_westlaw_lexis_bloomberg_platforms/">intending to release new interfaces</a> to their signature products in the next year, and both will focus on eliminating complex search query requirements in favor of Google-like <a class="zem_slink" title="Natural language" rel="wikipedia" href="http://en.wikipedia.org/wiki/Natural_language">natural language</a> searching and &#8220;<a class="zem_slink" title="Artificial intelligence" rel="wikipedia" href="http://en.wikipedia.org/wiki/Artificial_intelligence">artificial intelligence</a>&#8221; based sorting of results: &#8220;<a href="http://www.abajournal.com/news/article/exclusive_inside_the_new_westlaw_lexis_bloomberg_platforms/">Both companies claim to be creating a legal research experience that will mimic the ease of use their customers have come to expect from the leading Internet search engine, Google</a>,&#8221; wrote the Jill Schachner Chanen in the ABA Journal on Jan. 24th.</p> <p>This shift in search strategies can&#8217;t come soon enough for me. Even when I was routinely using Lexis and Westlaw, I frequently found an initial Google search &#8212; even without the new Google Scholar features &#8212; would do a far better job and getting me oriented on a case topic than anything Lexis or Westlaw could provide. Once I had some specific search terms, the big two would let me drill down, pull up case histories and related cases, and seek legal background information in treatises. But that initial searching was much easier and productive &#8212; not to mention cheaper! &#8212; using Google.</p> <p>Improving this aspect might help keep customers. Not doing it will certainly lose business, at least.</p> <p>I don&#8217;t think I could, in good conscience, charge a client for legal research done entirely in Lexis or Westlaw at this point, without first starting out with free (or lower cost, at least) options like Google Scholar or Fastcase. The cost difference is staggering, and I would feel unethical to charge a client for the cost of exploratory research using the big two (but not for using them to Shephardize, for example, for which a paid service is simply required).</p> <p>Personally, I am far more excited by Google Scholar than by these potential changes by the big two, but any innovation in this space would be welcome.</p> <p>For more, see:</p> <ul> <li><a href="http://www.abajournal.com/news/article/exclusive_inside_the_new_westlaw_lexis_bloomberg_platforms/">Exclusive: Inside the new Westlaw, Lexis &amp; Bloomberg Platform</a> (ABA Journal)</li> <li><a href="http://blogs.wsj.com/law/2010/01/25/on-the-lexis-and-westlaw-of-the-near-future/?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29">On the Lexis and Westlaw of the (Very) Near Future</a> (Wall Street Journal Law Blog)</li> </ul> "Want clients? Be helpful and do good" https://inpropriapersona.com/articles/want-clients-be-helpful-and-do-good/ Mon, 25 Jan 2010 08:05:25 +0000 170ced70b48e4e307e803f6416fc4fe5 <p><a title="Cat Rescue 009 [3]" href="http://www.flickr.com/photos/14095975@N04/2455004844/"><img class="alignright" title="&quot;Cat Rescue 009&quot; by Flickr user zzilch, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm3.static.flickr.com/2410/2455004844_abaf2379c9_m.jpg" alt="Cat Rescue 009 [3]" width="240" height="180" /></a></p> <p>Reflecting on <a class="zem_slink" title="Avvo" rel="homepage" href="http://avvo.com">Avvo</a>&#8216;s Internet marketing conference for lawyers, <a href="http://kevin.lexblog.com/promo/about-kevin/">Kevin O&#8217;Keefe</a> of <a class="zem_slink" title="LexBlog" rel="crunchbase" href="http://www.crunchbase.com/company/lexblog">LexBlog</a> writes:</p> <blockquote><p>I started on the Internet at AOL. I answered people&#8217;s injury, medical malpractice, and worker&#8217;s comp questions. The more questions I answered, the more work our firm got and the more successful we became. The more I listened to others and the more engaged I became, the more I enjoyed myself and the more people who contacted me to help them.</p> <p>I discovered that Internet marketing was not all about me. It was about what I, as a lawyer, could do to help other people. Rather than buying cheesy yellow page ads and running expensive TV ads, I could get good legal work by helping people.</p> <p>via <a href="http://kevin.lexblog.com/2010/01/articles/law-firm-marketing/for-lawyers-is-the-world-really-all-about-google-rankings-/?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+KevinOKeefe%2FRealLawyersHaveBlogs+%28Real+Lawyers+Have+Blogs%29">For lawyers is the world really all about Google rankings? : Real Lawyers Have Blogs</a>.</p></blockquote> <p>The lesson that good connections with people &#8212; arising from providing good quality content on a blog, helpful commentary in forums, useful information and replies on <a class="zem_slink" title="Twitter" rel="homepage" href="http://twitter.com">Twitter</a>, to name just three <a href="https://inpropriapersona.com/2009/05/six-small-marketing-steps.html">examples</a> &#8212; is the core of effective marketing is often lost.</p> <p>You might call this &#8220;un-marketing&#8221; or &#8220;non-marketing&#8221; to distinguish it from frantic SEO, blaring billboards, or extravagant banner ad purchases. It&#8217;s deceptively simple: go out and help people, and clients will find you.</p> <p>Taking this kind of approach does not mean foregoing an online presence. How can you put yourself out there and be helpful if you don&#8217;t join <a href="http://www.twitter.com">Twitter</a>, don&#8217;t blog, and don&#8217;t contribute to forums? And once you start seeking out people to help, how can they and others <a href="https://inpropriapersona.com/2009/06/5-social-networking-sites-for-legal-job-seekers/">find you</a> later if you aren&#8217;t on <a class="zem_slink" title="LinkedIn" rel="homepage" href="http://www.linkedin.com">LinkedIn</a> or don&#8217;t have your own Web site?</p> <p>Whatever you call it, the core message is to be helpful and do good, and the clients and customers will seek you out in return.</p> <p>As a do-gooder, <a href="http://en.wikipedia.org/wiki/Search_engine_optimization">SEO</a>, ad buys, and similar strategies should be done to be <em>helpful. </em>That is, such strategies should make it easier for people to <em>find</em> you, and for you to be helpful in return. They are secondary strategies, not primary ones.</p> <p>For a do-gooder, primary strategies involve getting out there and providing utility to others: answering questions, being a resource, advocating positions you believe in, sharing your experiences and knowledge.</p> <p>Doing good and being helpful isn&#8217;t a new marketing strategy. It&#8217;s just an old way of showing the world your worth, updated for new mediums. It takes Google&#8217;s &#8220;don&#8217;t be evil&#8221; and goes one better: <em>go do good, </em>and the clients will come (just don&#8217;t forget to make it easy for them!). It takes &#8220;add value&#8221; and takes it further: <em>go be helpful!</em></p> <p>Has this kind approach worked for you? Have better ideas? Think it&#8217;s crazy? Let me know in the comments.</p> "EFF’s warrantless wiretapping case dismissed" https://inpropriapersona.com/articles/effs-warrantless-wiretapping-case-dismissed/ Fri, 22 Jan 2010 09:18:04 +0000 a34421e73c580e9f45b22f354076174b <p><a href="http://www.eff.org/cases/jewel"><img class="alignright" title="&quot;AT&amp;T Logo Parody&quot; by Flickr user hughelectronic, used under a Creative Commons Attribution 2.0 license" src="http://farm3.static.flickr.com/2266/2247705686_26abd9c204_o.png" alt="" width="240" height="230" /></a>The Electronic Frontier Foundation reports:</p> <blockquote><p>A federal judge has dismissed <em>Jewel v. NSA</em>, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&amp;T customers challenging the National Security Agency&#8217;s mass surveillance of millions of ordinary Americans&#8217; phone calls and emails.</p> <p>via <a href="http://www.eff.org/press/archives/2010/01/21">EFF Plans Appeal of Jewel v. NSA Warrantless Wiretapping Case | Electronic Frontier Foundation</a>.</p></blockquote> <p>The government had argued, first, that sovereign immunity applied and, second, that the state secrets and related privileges would prevent the introduction of critical evidence. The judge, however, avoided ruling on these (potentially controversial) grounds, and instead <a href="http://www.eff.org/files/filenode/jewel/jeweldismissal12110.pdf">ruled</a> that the harm alleged was a &#8220;generalized grievance shared &#8230; by all or a large class of citizens,&#8221; citing <a href="http://scholar.google.com/scholar_case?case=18408735856908207861&amp;q=396+F3d+1248&amp;hl=en&amp;as_sdt=2002">Seegers v. Gonzalez</a> (this is sometimes called &#8220;ducking the question&#8221;).</p> <p>The EFF plans to appeal.</p> "Escaping the Kindle lock-box is now easier for authors and publishers" https://inpropriapersona.com/articles/escaping-the-kindle-lock-box-is-now-easier-for-authors-and-publishers/ Thu, 21 Jan 2010 19:36:30 +0000 c37d2ac571f8f6390335fba0bea769d1 <p><a href="http://www.flickr.com/photos/colemama/3426688219/"><img class="alignright" title="&quot;APR092009&quot; by Flickr user colemama, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm4.static.flickr.com/3355/3426688219_2b93f3afa9_m.jpg" alt="APR092009" width="240" height="220" /></a> Purchasing books on the Kindle has always struck me as a bit of a <a class="zem_slink" title="Faust" rel="wikipedia" href="http://en.wikipedia.org/wiki/Faust">Faustian</a> bargain (although not quite on the scale of selling your soul for immortality): once you enter the Kindle ecosystem and purchase some books, those books are forever locked to Amazon&#8217;s e-reader. You cannot switch platforms, since the <a class="zem_slink" title="Digital rights management" rel="wikipedia" href="http://en.wikipedia.org/wiki/Digital_rights_management">Digital Rights Management</a> (DRM) that &#8220;protects&#8221; your books won&#8217;t work on other e-readers.</p> <p>While this generally irks mostly customers &#8212; and not very many customers have even experienced this as yet, since the e-reader market is new &#8212; some publishers and authors feel this negatively impacts their customer relationship.</p> <p>Now Amazon has made it easier &#8212; or at least made the choice more explicit &#8212; for small-scale publishers to decide what kind of relationship with their readers they would like to have:</p> <blockquote><p>Without a formal announcement, <a class="zem_slink" title="Amazon" rel="homepage" href="http://amazon.com/">Amazon.com</a> has started allowing authors to publish their <a class="zem_slink" title="E-book" rel="wikipedia" href="http://en.wikipedia.org/wiki/E-book">ebooks</a> for the Kindle without digital rights management (DRM), the technology that limits how consumers can use the ebooks they’ve bought.</p> <p>via <a href="http://www.niemanlab.org/2010/01/amazon-quietly-lets-publishers-remove-drm-from-kindle-ebooks/">Amazon quietly lets publishers remove DRM from Kindle ebooks » Nieman Journalism Lab</a>.</p></blockquote> <p>While this doesn&#8217;t impact the larger ecosystem, it&#8217;s a step that takes e-readers closer to where the behemoth of music sellers has already gone: last year Apple switched off DRM for music tracks purchased through iTunes.</p> <p>Many publishers and authors fear the results of rampant copying and eagerly embrace DRM as a solution. I personally feel this is the wrong choice, and there <a href="http://www.nytimes.com/2009/12/17/technology/personaltech/17pogue-email.html?_r=3&amp;8cir&amp;emc=cira1">is some limited data to back me up</a>. Nonetheless, the real story here is that Amazon is making it easier for authors and publishers &#8212; at least small-scale ones &#8212; to choose, and putting that choice up front. At the very least, this forces a brief moment of thought, and hopefully it will generate additional data about whether DRM benefits or harms sales and customer relations.</p> "Applying the Fourth Amendment to data in the cloud" https://inpropriapersona.com/articles/applying-the-fourth-amendment-to-data-in-the-cloud/ Wed, 20 Jan 2010 08:01:21 +0000 58f93994f8daa6b4651ae5241196bed2 <p><a href="http://www.flickr.com/photos/mr_t_in_dc/4249886990/"><img class="alignright" title="&quot;Constitution in the National Archives&quot; by Flickr user Mr. T in DC, available under a Creative Commons Attribution-No Derivative Works 2.0 license" src="http://farm3.static.flickr.com/2698/4249886990_107e92c466_m.jpg" alt="Constitution in the National Archives" width="240" height="160" /></a> In a Note called <a href="http://www.minnesotalawreview.org/content/note-defogging-cloud-applying-fourth-amendment-principles-evolving-privacy-expectations-clou">Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing</a>, David A. Couillard explores the potential applicability of the <a class="zem_slink" title="Fourth Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution">Fourth Amendment</a> to data stored in offsite servers: spreadsheets in <a class="zem_slink" title="Google Docs" rel="homepage" href="http://docs.google.com">Google Docs</a>, accounting data hosted on <a class="zem_slink" title="Freshbooks" rel="homepage" href="http://www.freshbooks.com/">FreshBooks</a>, and pretty much everything synced through <a class="zem_slink" title="Dropbox" rel="homepage" href="http://www.dropbox.com">DropBox</a>, just to name three example services.</p> <p>So far the courts &#8212; who, absent on-point statutes, pretty much always reason by analogy when presented with novel situations &#8212; have not yet come to a conclusion about how to treat such data. Drawing on analogies to telephones, combined guidance from statutes like <a class="zem_slink" title="Electronic Communications Privacy Act" rel="wikipedia" href="http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act">ECPA</a>, the courts have pretty much settled on their treatment of email:</p> <blockquote><p>The to/from addresses on e-mails have also been considered transactional data, akin to an addressed envelope. However, the contents of an e-mail have been properly classified as content data. A service provider, even if it has the capability of accessing the contents of an e-mail, is not a party to the information.</p></blockquote> <p>However, the status of data stored in the cloud, that is, on the servers of a third-party provider, is much less clear. Couillard must treat this is a normative rather than descriptive fashion, suggesting that the courts &#8220;<em>should</em> treat cloud service providers as virtual landlords&#8221; (emphasis mine).</p> <blockquote><p>Similarly, access to the content of a calendar, address book, photo album, text document, or private blog is not given to the service provider. Although the user might be interacting with a cloud-based word processor or spreadsheet, the content of those documents is not intended to be shared with the provider; the provider is merely providing a platform for using and storing the content via the cloud. Whatever minimal right the service provider reserves to access the contents of those files or containers, the service provider is not a party to the contents any more than a landlord is a party to what goes on behind his tenants&#8217; closed doors due to his limited right of entry.</p></blockquote> <p>Couillard&#8217;s landlord-tenant analogy is a useful and necessary one. In an earlier discussions, Couillard suggested that encryption and passwords could provide the &#8220;opacity&#8221; that leads to a <a class="zem_slink" title="Expectation of privacy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Expectation_of_privacy">reasonable expectation of privacy</a> and thus Fourth Amendment protection. Unfortunately, there is no current way for users of Google Docs, as a representative example, to take advantage of encryption or password protection to limit access by Google. Similarly, a tenant does not expect a lock fitted by a landlord to keep the landlord out &#8212; that&#8217;s the role of the law.</p> <p>So, there are two takeaway&#8217;s from Couillard&#8217;s piece. First, the landlord-tenant relationship is a good one to look for when considering an analogy for the provider-user relationship when it comes to Fourth Amendment protections. Second, the data you keep in the cloud may or may not be subject to a warrant requirement before the government accesses it. Keep this in mind when you balance the pros and cons of storing your data with third parties.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-19413_3-10436425-240.html?part=rss&amp;subj=news&amp;tag=2547-1_3-0-20">Does the Fourth Amendment cover &#8216;the cloud&#8217;?</a> (news.cnet.com)</li> <li class="zemanta-article-ul-li"><a href="http://gigaom.com/2010/01/14/who-exactly-owns-your-data-in-the-cloud/">Who Exactly Owns Your Data in the Cloud?</a> (gigaom.com)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20100118/0232247789.shtml">Do You Have Any Legal Right To Privacy For Information Stored Online?</a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="http://yro.slashdot.org/story/10/01/19/0337249/The-Fourth-Amendment-and-the-Cloud?from=rss">The Fourth Amendment and the Cloud</a> (yro.slashdot.org)</li> </ul> "Truth vs. relativism in science" https://inpropriapersona.com/articles/truth-vs-relativism-in-science/ Tue, 19 Jan 2010 17:39:53 +0000 74b7b46c19560520b371aef2ecaf2e13 <p><a href="http://www.amazon.com/Science-Social-Inequality-Feminist-Postcolonial/dp/0252073045%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0252073045"><img class="alignleft" src="http://ecx.images-amazon.com/images/I/41Z044D7ZHL._SL500_.jpg" alt="" width="168" height="250" /></a>In <a href="http://www.amazon.com/gp/product/0252073045?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0252073045">Science and Social Inequality</a> by <a class="zem_slink" title="Sandra Harding" rel="wikipedia" href="http://en.wikipedia.org/wiki/Sandra_Harding">Sandra Harding</a>, I found a discussion on p. 148 of claims to &#8220;<a class="zem_slink" title="Universality (philosophy)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Universality_%28philosophy%29">absolute truth</a>&#8221; in science (and the fear of <a class="zem_slink" title="Moral relativism" rel="wikipedia" href="http://en.wikipedia.org/wiki/Moral_relativism">relativism</a>) particularly interesting:</p> <blockquote><p>The fear of relativism seems odd, also, when we consider that in daily life we are able to produce what most people, including law courts, regard as rational justifications for our knowledge claims. We do not think that such claims are absolutely true, under any conditions, now and forever; they are always revisable if additional evidence or a useful new conceptual framework appears. … Whether we are right or wrong to do so in particular cases, we routinely and confidently take such positions with respect to health matters, legal issues, and the everyday choices we must make. The arguments between absolutists and relativists seem to float free of such everyday experiences and the ways we think about them.</p></blockquote> <p>This kind of pragmatic approach to issues of truth and knowledge match my own predilections. I get frustrated by those who insist that truth is absolute and fight against relativism because it will lead to chaos and anarchy. I also get frustrated by relativists who insist that we cannot judge the world around us because we are simply imposing our own cultural values on others. Both positions seem absurd to me, and it&#8217;s nice to see a discussion of the pragmatic, everyday middle ground (a middle ground I&#8217;ve been trained to occupy as a lawyer as well).</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=896d60c4-e741-44eb-a41b-9deb7b6d41ce" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "FBI “technically violated” wiretap laws for years" https://inpropriapersona.com/articles/fbi-technically-violated-wiretap-laws-for-years/ Tue, 19 Jan 2010 05:05:18 +0000 5ce073a944134759ec2e8d16231f199f <p><a href="http://www.flickr.com/photos/ghost_bear/4256690080/"><img class="alignright" title="&quot;DSC_4600&quot; by Flickr user Ghost_Bear, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm5.static.flickr.com/4070/4256690080_bfecc41956_m.jpg" alt="DSC_4600" width="240" height="167" /></a> &#8220;Technically violated&#8221; the law? Is that a defense?</p> <blockquote><p>The <a class="zem_slink" title="Federal Bureau of Investigation" rel="geolocation" href="http://maps.google.com/maps?ll=38.894465,-77.024503&amp;spn=0.01,0.01&amp;q=38.894465,-77.024503 (Federal%20Bureau%20of%20Investigation)&amp;t=h">FBI</a> illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.</p> <p>&#8230;</p> <p>FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the <a class="zem_slink" title="Electronic Communications Privacy Act" rel="wikipedia" href="http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act">Electronic Communications Privacy Act</a> when agents invoked nonexistent emergencies to collect records.</p> <p>via <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/18/AR2010011803982.html?hpid%3Dtopnews&amp;sub=AR">FBI broke law for years in phone record searches &#8211; washingtonpost.com</a>.</p></blockquote> <p>Still, at least the FBI seems to be coming (relatively) clean on this, and says the violations ended in 2007 with changes to the system used. Considering how loose &#8220;after the fact&#8221; approval is &#8212; even when staying within the law &#8212; the basis for these <a class="zem_slink" title="Telephone tapping" rel="wikipedia" href="http://en.wikipedia.org/wiki/Telephone_tapping">wiretaps</a> must have been pretty flimsy.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://comsecllc.blogspot.com/2009/12/privacy-overview-of-federal-statutes.html">Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping</a> (comsecllc.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="http://seattlest.com/2009/10/08/surveillance_without_suspicion_who.php">Surveillance Without Suspicion: Who Watches the Watchmen?</a> (seattlest.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2007/09/does-other-party-on-wiretapped-line.html">Does the &#8220;Other Party&#8221; on a Wiretapped Line Have Any Privacy Rights?</a> (inpropriapersona.com)</li> </ul> "Professionalization and the self-replication of university professors" https://inpropriapersona.com/articles/professionalization-and-the-self-replication-of-university-professors/ Mon, 18 Jan 2010 22:14:53 +0000 165a2895072962a6fa04767cc5858807 <p>There has been an <a href="https://inpropriapersona.com/2010/01/dont-go-to-grad-school/">ongoing discussion</a> regarding the challenges facing higher education in the United States. These challenges are especially acute in the humanities, and of course a budget crisis and recession only magnify existing problems.</p> <p><a href="http://www.amazon.com/gp/product/0393062759/ref=as_li_ss_il?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=217145&amp;creative=399369&amp;creativeASIN=0393062759"><img class="alignright" src="http://ws.assoc-amazon.com/widgets/q?_encoding=UTF8&amp;Format=_SL160_&amp;ASIN=0393062759&amp;MarketPlace=US&amp;ID=AsinImage&amp;WS=1&amp;tag=commentinprop-20&amp;ServiceVersion=20070822" alt="" width="109" height="160" border="0" /></a><img style="border: none !important; margin: 0px !important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0393062759&amp;camp=217145&amp;creative=399369" alt="" width="1" height="1" border="0" /></p> <p>Louis Menand, in his book <a href="http://www.amazon.com/gp/product/0393062759?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0393062759">The Marketplace of Ideas</a>, identifies as the core problem the focus of humanities professors on replicating themselves. That is, they seek to produce new humanities professors in their own mold:</p> <blockquote><p>His new book suggests that contemporary higher education&#8217;s biggest problem is professionalization. The academic department has become a guild, and, like any self-regulating bureaucracy, its errand is to replicate itself. To draw on an example close to Menand, who is both a member of Harvard&#8217;s English department and an unfailingly interesting cultural critic at <a class="zem_slink" title="The New Yorker" href="http://www.newyorker.com" rel="homepage">The New Yorker</a>, the result is that &#8220;the university literature department is not especially well suited to the business of producing either interesting literary criticism or interesting <a class="zem_slink" title="Literary criticism" href="http://en.wikipedia.org/wiki/Literary_criticism" rel="wikipedia">literary critics</a>.&#8221; What it does well, of course, is produce good literature professors.</p> <p>via <a href="http://www.slate.com/id/2241555">Louis Menand&#8217;s The Marketplace of Ideas. &#8211; By Gideon Lewis-Kraus &#8211; Slate Magazine</a>.</p></blockquote> <p>To a certain extent this is true and necessary of humanities department, I believe. How else will new professors be produced other than through <a class="zem_slink" title="Graduate school" href="http://en.wikipedia.org/wiki/Graduate_school" rel="wikipedia">graduate school</a> in the humanities? Potentially unlike other fields, there are very few professional opportunities outside of the academy. Law graduates become lawyers <em>and </em>law professors; engineering PhDs become professional engineers <em>and </em>engineering professors. But what do literature PhDs do, other than teach literature?</p> <p>My thought here is that perhaps this is not really a problem with graduate school programs per se, but rather that graduate departments reflect larger societal issues. Personally, I believe corporations and government agencies could benefit from the skills and approaches humanities scholars develop, but this is a hard sell. There is a chicken-and-the-egg problem, of course, since the more specialized and focused graduate programs are on producing people skilled only in being professors, the less desirable these PhDs are outside the academy. At the same time, the less demand there is outside the university, the more focused graduate school will be on preparing their student for their likeliest career path: teaching at a university.</p> <p>The solution to this &#8212; if there is one &#8212; is unclear to me, but I intend to continue developing my thoughts and ideas on this as I proceed through my PhD program.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=6081c509-3e6a-433f-be37-f0b298b29a21" alt="" /></div> "Should signing a petition be a confidential act?" https://inpropriapersona.com/articles/should-signing-a-petition-be-a-confidential-act/ Sat, 16 Jan 2010 20:41:24 +0000 0eb2d8c1ed09d88aa26662b47fe23985 <p><a href="http://www.flickr.com/photos/froboy/3343599824/"><img class="alignright" title="&quot;Collecting signatures to support overturning Prop 8&quot; by Flickr user froboy, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license." src="http://farm4.static.flickr.com/3369/3343599824_a05bf6f49d_m.jpg" alt="" width="240" height="160" /></a>The <a class="zem_slink" title="Supreme Court of the United States" rel="geolocation" href="http://maps.google.com/maps?ll=38.8907083333,-77.0043444444&amp;spn=1.0,1.0&amp;q=38.8907083333,-77.0043444444 (Supreme%20Court%20of%20the%20United%20States)&amp;t=h">Supreme Court</a> has accepted a new case on to its docket, <a href="John Doe #1, et al., Petitioners v. Sam Reed, Washington Secretary of State, et al. ">John Doe #1, et al., Petitioners v. Sam Reed, Washington Secretary of State, et al.</a>:</p> <blockquote><p>The core constitutional issues in the case are whether signing a ballot measure petition is a form of political speech, whether, if it is protected by the <a class="zem_slink" title="First Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution">First Amendment</a>, it includes a right to sign without official public disclosure, what standard is to be applied when judging regulation of such a First Amendment right, and what government interest supports disclosure rather than confidentiality for signers&#8217; identities.</p> <p>via <a href="http://www.scotusblog.com/court-to-rule-on-petition-signers-rights/?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+scotusblog%2FpFXs+%28SCOTUSblog%29">SCOTUSblog » Court to rule on petition-signers’ rights</a>.</p></blockquote> <p>Opponents of <a class="zem_slink" title="Same-sex marriage" rel="wikipedia" href="http://en.wikipedia.org/wiki/Same-sex_marriage">gay marriage</a> and similar laws argue that the state should not release the names of those who sign petitions (such as those supporting their position), because doing so might make signers targets and thus stifle their sense of freedom to freely express their opinions. (The argument is, in essence, the core of why we have <a class="zem_slink" title="Secret ballot" rel="wikipedia" href="http://en.wikipedia.org/wiki/Secret_ballot">secret ballots</a> in actual voting.) Exposing signers to potential harassment for their views, then, would stifle their ability express their political views by signing petitions they support.</p> <p>But is this really a <a class="zem_slink" title="Freedom of speech" rel="wikipedia" href="http://en.wikipedia.org/wiki/Freedom_of_speech">free speech</a> issue? That is, should anonymity of expression be protected as part and parcel of the First Amendment? After all, we&#8217;ve seen a number of instances where corporations and governments have tried to force journalists to reveal their anonymous sources, and have even <a href="http://en.wikipedia.org/wiki/Judith_Miller_(journalist)">jailed journalists who refuse</a>. And many of us have witnessed or experienced the de-anonymizing influence of the modern Internet, where everything posted online <a href="http://librarianinexcellence.blogspot.com/2007/05/myspace-led-to-job-loss.html">tends to become public</a>. So how can signing a petition &#8211;usually in a public place, often with witnesses &#8212; give you protected anonymity? Is this even a Constitutional issue at all?</p> <p>The Supreme Court has granted protections in the past to <a href="http://www.eff.org/issues/anonymity">anonymous communications</a> as part of First Amendment protections of free speech. For example, in <a href="http://scholar.google.com/scholar_case?case=3281990700387373626&amp;q=514+U.S.+334&amp;hl=en&amp;as_sdt=2003">In McIntyre v. Ohio Elections Commission</a>, the Supreme Court struck down an Ohio law that prohibited the anonymous distribution of campaign literature, writing:</p> <blockquote><p>Under our <a class="zem_slink" title="United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/United_States_Constitution">Constitution</a>, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. &#8230; It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation &#8212; and their ideas from suppression &#8212; at the hand of an intolerant society.</p></blockquote> <p>First Amendment law can be complicated, and involves<a href="http://www.law.cornell.edu/anncon/html/amdt1bfrag5_user.html"> balancing a number of factors</a>. In addition, there is a difference between government involvement (in this case, Washington acting as a state to enable publication of names), private actions (your employer discovering your anonymous criticisms of the company, and firing you), and court involvement (subpoenas, rulings that order journalists to reveal sources in court, and so on).</p> <p>Personally, I always assumed (without ever giving it any deep thought or legal analysis) that my signature on a <a class="zem_slink" title="Initiative" rel="wikipedia" href="http://en.wikipedia.org/wiki/Initiative">ballot initiative</a> was a public record. After all, I&#8217;m signing it in public, it needs to be verified as legitimate to count, I&#8217;m providing my name and address &#8212; it certainly never <em>felt</em> anonymous to me. That&#8217;s why I always insist on reading what I&#8217;m signing, considering the issues, and only signing what I actually agree with, instead of signing just to make the petition-gatherer go away.</p> <p>So my gut tells me that such signatures should be public, but only because I always assumed they were anyway. I&#8217;ll be curious to see where the Supreme Court comes down on this, since the lower courts have gone both ways.</p> <p>For more on this, see:</p> <ul> <li><a href="http://www.seattlepi.com/local/411967_gayrights09.html">U.S. Supreme Court could be next stop for R-71</a> from the Seattle P-I, quoting legal scholars giving their opinions</li> <li><a href="http://volokh.com/2009/10/19/ninth-circuit-overturns-preliminary-injunction-restraining-release-of-names-of-anti-domestic-partnership-petition-signers-in-washington-state/">Ninth Circuit Overturns Preliminary Injunction Restraining Release of Names of Anti-Domestic-Partnership Petition Signers in Washington State</a> at The Volokh Conspiracy</li> <li>The Ninth Circuit <a href="http://scholar.google.com/scholar_case?q=protect+marriage+v+sam+reed&amp;hl=en&amp;as_sdt=2003&amp;as_ylo=2007&amp;case=17315967308625796543docstoc.com/docs/15378071/Washington-Gay-Marriage-Referendum-Law-Suit">decision that concluded</a> that Washington could release the names of signers in the interest of transparency and accountability, and that this was not a question of &#8220;anonymous free speech&#8221; anyway, since signing a petition was not anonymous at all.</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=195f9a0d-92ca-4455-9e90-01fc28e11186" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Historians need to stop obsessing over writing books" https://inpropriapersona.com/articles/historians-need-to-stop-obsessing-over-writing-books/ Thu, 14 Jan 2010 00:13:51 +0000 8fa905fc04ad03810eaac589406c6d35 <p><a href="http://www.flickr.com/photos/armchairanarchist/466214582/"><img class="alignright" title="&quot;RNML_illustrateds2&quot; by Flickr user Paul Graham Raven, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license." src="http://farm1.static.flickr.com/188/466214582_9a1d058d7a_m.jpg" alt="RNML_illustrateds2" width="240" height="160" /></a> Why are historians so obsessed with writing <em>books</em>?</p> <p>Now that I&#8217;m on my second quarter of a PhD program in the <a href="http://en.wikipedia.org/wiki/History_of_science">History of Science</a>, I am continuing to think about<em> why</em> I am doing this and <em>what </em>history  has to offer, both to me and to the world at large. One concern I already have is with the apparent obsession with the book as the primary mechanism of disseminating the work of historians.</p> <p>To begin with, I&#8217;ve noticed a tendency in the discipline of history &#8212; common in many disciplines, of course &#8212; to focus inward (or backward?) and to avoid engagement with the rest of society. In departments of history right now, there is a distinct, and understandable, preoccupation with budget cuts and the lack of <a href="http://en.wikipedia.org/wiki/Tenure_track">tenure-track</a> faculty positions. The latter issue has caused a <a href="https://inpropriapersona.com/2010/01/dont-go-to-grad-school/">certain sense of crisis</a> in history departments, especially amongst graduate students who are now consistently warned about the lack of jobs and the challenges of adjunct teaching. The former should lead to an increasing desire to <em>justify</em> the place of history (and its departments) in academy and society. Surprisingly, however, I have not seen a great deal of such justification as yet. Mostly I have instead seen the discipline continue to focus on the itself and its own concerns &#8212; to draw inwards. Academic disciplines are conservative, though, and a shift to engage with contemporary society in a real way is not easy.</p> <p>That said, certainly I have seen a newer generation of historians focus on socially relevant issues, including culture, ethnicity, technology, etc. I have not, though, seen this focus reflected in the <em>marketing </em>or communications of the discipline. The shift to greater societal engagement, then, is not so much about contemporary <em>issues</em>, but is instead a problem of a failure to engage effectively with meaningful <em>mechanisms</em> of modern communications.</p> <p>While I do believe that <a href="http://www.twitter.com">Twitter</a>, <a href="http://www.facebook.com">Facebook</a>, blogs, and other forms of <a href="http://en.wikipedia.org/wiki/Social_media">social media</a> are one potential means of communication yet to be engaged with fully by historians, I see this failure reflected more basically in a disciplinary obsession with full-length <em>books </em>(as opposed to article-length pieces or other shorter scholarly works). The tendency in my history seminars is to assign these long books for discussion. Legal, medical and scientific scholars, on the other hand, prefer journal articles to books (with the exception of textbooks, which serve a different purpose).</p> <p>History values the book first. Publishing your dissertation as a book is essentially required if you want a chance at a tenure-track position. Reading at least a book per week per seminar is mandatory. <a href="http://books.google.com/books">Google Books</a> is revolutionary, as it provides electronic access to books, something that is hardly revolutionary when it comes to <em>articles</em>!</p> <p><a href="https://www.amazon.com/Lincoln-David-Herbert-Donald/dp/068482535X/ref=as_li_ss_il?ref_=nav_signin&#038;&#038;linkCode=li3&#038;tag=commentinprop-20&#038;linkId=cc10b978ca0c7375172c572b9160db5f" target="_blank"><img border="0" src="https://inpropriapersona.com/https:/https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&#038;ASIN=068482535X&#038;Format=_SL250_&#038;ID=AsinImage&#038;MarketPlace=US&#038;ServiceVersion=20070822&#038;WS=1&#038;tag=commentinprop-20" ></a><img src="https:/https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&#038;l=li3&#038;o=1&#038;a=068482535X" width="1" height="1" border="0" alt="" style="border:none !important; margin:0px !important;" />Books can be wonderful, and can capture the sweep of history in a way that an article cannot. Such a sweeping approach, pulling the reader along for the ride, can make for good story-based history if well written, well edited, and not too caught up in historical detail. (General readers don&#8217;t want footnotes!) If more historians produces this kind of work, that might be a great thing for public understanding, and might even benefit the discipline. But those aren&#8217;t the books I&#8217;m talking about.</p> <p><a href="http://www.amazon.com/Intelligibility-Nature-Science-Makes-Science-Culture/dp/0226139492%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0226139492"><img class="alignright" title="The Intelligibility of Nature by Peter Dear" src="http://ecx.images-amazon.com/images/I/51FMmXy0p1L._SL160_.jpg" alt="" width="107" height="160" /></a>Most of the books I see in history are aimed at other historians (though they might pretend to be readable by the public, to try to entice a publisher to bite). Even the really good ones could often have been cut in half with some good editing. They certainly would have been more <em>useful </em>to me as a scholar if they had been published as a focused series of articles. And despite my sense that a good book aimed at the general public can be a great thing, wouldn&#8217;t more shorter pieces that are accessible at least to inform journalists &#8212; or as resources beyond <a href="http://www.wikipedia.com">Wikipedia</a> &#8212; also benefit the public rather directly? I think people generally are expecting shorter, tighter, more focused written work today, for good or ill. I also think historians should stop fighting that trend, and start embracing it.</p> <p>Honestly, I don&#8217;t know whether the general public would read more history if it were shorter. (Despite my hopes, I suspect not.) But I do think the work of historians could be more readily accessible to other disciplines &#8212; law, medicine, sociology, and so on &#8212; if their works were packaged in a more focused form than the <em>book</em>. This might go a long ways towards justifying the utility of history within the academy by encouraging other disciplines to make use of its work. Combine this greater accessibility with greater use of social media and modern self-marketing tools, along with a strong dose of the ongoing trend to engage with contemporary issues (while informing that engagement with a strong dose of historical understanding)  and I think historians and their discipline would receive a much higher valuation from both within and without the university.</p> <p>So how about it, historians? Can you give up your precious books?</p> "Extending mandatory open access beyond the NIH" https://inpropriapersona.com/articles/extending-mandatory-open-access-beyond-the-nih/ Mon, 11 Jan 2010 00:57:00 +0000 6353a08f5c400bff90350367b03bd505 <p><a href="http://www.flickr.com/photos/emdot/56157732/"><img class="alignright" title="&quot;okay all you partiers: take note&quot; by Flickr user emdot, used under a Creative Commons Attribution 2.0 license." src="http://farm1.static.flickr.com/32/56157732_bd28b77fe5_m.jpg" alt="" width="240" height="179" /></a>Since late 2007, the <a class="zem_slink" title="National Institutes of Health" rel="geolocation" href="http://maps.google.com/maps?ll=39.000443,-77.102394&amp;spn=1.0,1.0&amp;q=39.000443,-77.102394%20%28National%20Institutes%20of%20Health%29&amp;t=h">National Institutes of Health</a> (NIH) has been mandated to provide to the public, free of charge, manuscripts developed through NIH funding within one year of publication elsewhere. The requirement <a href="http://ssrn.com/abstract=1147427">strikes a compromise position</a> between supporting restrictive private journal publishers and putting manuscripts in the <a class="zem_slink" title="Public domain" rel="wikipedia" href="http://en.wikipedia.org/wiki/Public_domain">public domain</a>.</p> <blockquote><p>Now the Obama Administration (specifically, the <a class="zem_slink" title="Office of Science and Technology Policy" rel="homepage" href="http://www.ostp.gov">Office of Science and Technology Policy</a>, or OSTP) is considering extending the policy to other federal agencies that fund <a class="zem_slink" title="Research" rel="wikipedia" href="http://en.wikipedia.org/wiki/Research">academic research</a>.</p> <p>via <a href="http://www.eff.org/deeplinks/2009/12/putting-public-publicly-funded-research">Putting the &#8220;Public&#8221; In Publicly-Funded Research | Electronic Frontier Foundation</a>.</p></blockquote> <p>I am a big supporter of <a class="zem_slink" title="Open access (publishing)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Open_access_%28publishing%29">open access</a> to research. I think it provides a large public benefit at a minimal cost to anyone, even private publishers (who, I think, can and do make most of their profit on rapid dissemination of new materials to those who want them now, not six months or more later). Yes, publishers add some value through editorial management and processing, but most authors aren&#8217;t compensated, and many publishers are making large profits without adding enough value to justify the cost.<span style="font-size: x-small;"> </span></p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=702c0605-2a6c-436f-b7d4-36c49e02cfad" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Google and the historian" https://inpropriapersona.com/articles/google-and-the-historian/ Sun, 10 Jan 2010 03:27:41 +0000 97aab5636470dc2e6a97e2023fd145e3 <p><a href="http://farm3.static.flickr.com/2782/4202913115_60dfe7cb1d_m.jpg"><img class="alignright" title="&quot;Box of type&quot; from the Edinburgh City of Print on Flickr, used under a Creative Commons Attribution 2.0 license." src="http://farm3.static.flickr.com/2782/4202913115_60dfe7cb1d_m.jpg" alt="" width="240" height="93" /></a>Dan Cohen gave an interesting talk at the <a class="zem_slink" title="American Historical Association" rel="wikipedia" href="http://en.wikipedia.org/wiki/American_Historical_Association">American Historical Association</a> meeting recently, where he discussed the benefits <a class="zem_slink" title="Google" rel="homepage" href="http://google.com">Google</a> brings to historical research, as well as some pointed criticisms.</p> <p>Compare Google to other companies, like <a class="zem_slink" title="ProQuest" rel="homepage" href="http://www.proquest.com/">ProQuest</a> or Elsevier. These two (among other companies) charge &#8220;exorbitant&#8221; fees to libraries for access to research materials. I think anyone who has ever worked in a library would agree that the costs of access are frustrating and increasingly impossible, and take a larger and larger chunk of library resources, even as library budgets are shrinking. Negotiating with them is an ongoing challenge, and the tools they provide &#8212; while powerful &#8212; are nowhere near the level modern technologies should allow. Contrast this with Google, which &#8220;has given us Google Scholar, Google Books, newspaper archives, and more, often besting commercial offerings while being freely accessible.&#8221;</p> <p>Google Books has revolutionized the way many students and professors approach historical research. The size of one&#8217;s local library is no longer a limitation to the kind of research work one can do. I am no longer dependent exclusively <a class="zem_slink" title="Interlibrary loan" rel="wikipedia" href="http://en.wikipedia.org/wiki/Interlibrary_loan">interlibrary loan</a> to get access to books my university lacks. Even if I eventually I want to actual, physical book, with Google Books I can see if it will be useful before I waste the time  (or the very limited funds I have currently to buy it myself).</p> <p>Cohen also points out, however, that for all the utility of the service, Google &#8220;remains strangely closed when it comes to Google Books.&#8221; Cohen writes, &#8220;The real problem &#8212; especially for those in the digital humanities but increasingly for many others &#8212; is that Google Books is only open in the read-a-book-in-my-pajamas way.&#8221; Google has chosen not to maximize access to <a class="zem_slink" title="Public domain" rel="wikipedia" href="http://en.wikipedia.org/wiki/Public_domain">public-domain</a> books, or abandoned books. To do so would potentially revolutionize the entire sphere of intellectual property and the publishing industry &#8212; the kind of revolution Google is famous for in other spheres, but which it has not chosen to push now. The current settlement may indeed be problematic, but it is not revolutionary. Cohen notes:</p> <blockquote><p>We should remember that the reason we are in a settlement now is that Google didn&#8217;t have enough chutzpah to take the higher, tougher road &#8212; a direct challenge in the courts, the court of public opinion, or the Congress to the intellectual property regime that governs many books and makes them difficult to bring online, even though their authors and publishers are long gone. While Google regularly uses its power to alter markets radically, it has been uncharacteristically meek in attacking head-on this intellectual property tower and its powerful corporate defenders. Had Google taken a stronger stance, historians would have likely been fully behind their efforts, since we too face the annoyances that unbalanced copyright law places on our pedagogical and scholarly use of textual, visual, audio, and video evidence.</p> <p>via <a href="http://www.dancohen.org/2010/01/07/is-google-good-for-history/">Dan Cohen’s Digital Humanities Blog » Blog Archive » Is Google Good for History?</a>.</p></blockquote> <p>Much as I would have liked to see the IP regime change and to see Google leading the effort, perhaps such an attempt is unrealistic. Google understands Web data. It&#8217;s engineers understand electronic sources, hyperlinks, software, and PDFs. Their approaches and algorithms have revolutionized Web searching. But the people at Google have less of an understanding of the kind of research and writing done in the humanities, the books historians write, and the articles and research we produce. Cohen writes:</p> <blockquote><p>Because Google Books is the product of engineers, with tremendous talent in computer science but less sense of the history of the book or the book as an object rather than bits, it founders in many respects. Google still has no decent sense of how to rank search results in humanities corpora. Bibliometrics and text mining work poorly on these sources (as opposed to, say, the highly structured scientific papers Google Scholar specializes in). Studying how professional historians rank and sort primary and secondary sources might tell Google a lot, which it could use in turn to help scholars.</p></blockquote> <p>Google has managed to move into new areas before, from search to building hardware and software (the Nexus One), for example. Why couldn&#8217;t they learn from the humanities and not just from other engineers? Advertising, after all, is already a combination of engineering, humanities, and business &#8212; so why couldn&#8217;t Google developers learn from history scholars to improve their search algorithms for Google Scholar and Google Books?</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=5a34aefa-66a4-46d3-8341-b944b43f5d8f" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "How to write attributions for the Creative Commons licensed images you use on your blog" https://inpropriapersona.com/articles/how-to-write-attributions-for-the-creative-commons-licensed-images-you-use-on-your-blog/ Thu, 07 Jan 2010 19:00:11 +0000 a8249b82b538e2d7270b4f348492febe <p>I&#8217;ve found that pictures shared under a <a href="http://creativecommons.org/about/licenses/">Creative Commons (CC) license</a> (of all flavors) are a great resource for bloggers who want artwork to accompany their posts. I&#8217;ve also realized that not everyone, myself included, has always done an adequate job of meeting the attribution requirements of CC licenses.</p> <div class="alert-message block-message warning" style="float:right;width:200px;"> <strong>My quick recommendations:</strong></p> <ol> <li>Link to the source page.</li> <li>Provide the image title, creator&#8217;s name, and license (link to the license if you can) as a caption or in the &#8220;title&#8221; attribute:<br /> <strong><a href="http://www.flickr.com/photos/krisnelson/4213915751/"><img class="alignleft" title="&quot;Agatha on the porch&quot; by Flickr user Kristopher Nelson, used under a Attribution-Noncommercial-Share Alike 2.0 license." src="http://farm3.static.flickr.com/2677/4213915751_050a74b704_s.jpg" alt="" width="75" height="75" /></a>&#8220;<a href="http://www.flickr.com/photos/krisnelson/4213915751/">Agatha on the porch</a>&#8221; by Flickr user <a href="http://krisnelson.org">Kristopher Nelson</a>, used under a Creative Commons </strong><strong><a href="http://creativecommons.org/licenses/by-nc-sa/2.0/deed.en">Attribution-Noncommercial-Share Alike 2.0</a> license.</strong></li> <li>If the licensor asks for a specific attribution, do what they request.</li> </ol> <p>The general goal is to provide credit to the source, along with information to your visitors on the image&#8217;s license. (See also <a href="http://wiki.creativecommons.org/FFAQ#How_do_I_properly_attribute_a_Creative_Commons_licensed_work.3F">the Creative Commons FAQ</a>.) </div> <p>I don&#8217;t believe there are any bad intentions at work, but I do think it&#8217;s not always clear to people what their obligations are when using Creative Commons licensed images in their blog. (My focus is on the attribution aspect of the licenses, not those pertaining to commercial use, sharing, etc. I am also relying on version 3.0 of the license, but this discussion should be applicable to all the versions.)</p> <h4>So how can we do better?</h4> <p>We can do better by making sure the images we use are properly licensed. For Creative Commons licensed images, this means putting in proper attribution that meets the standards of the license. I plan to do this going forward, and I also plan to spend time going back over images in my old posts to make sure they meet licensing requirements as well.</p> <h4>The Key Provisions in the Creative Commons Licenses</h4> <p>There are two key provisions of all the Creative Commons licenses that are critical for proper use of images in a blog. First, section 4(a) requires that a copy of the license or a link to the license be included with the work. Second, section 4(b) requires that you provide the name of the owner (or who they designate), the title of the image, and a link to the work (but make sure you don&#8217;t suggest they are endorsing you).</p> <h4>So What Does this Mean for Bloggers?</h4> <p>As a blogger you should provide the following information along with the image you are using in your article:</p> <ul> <li>the name (or screen name) of the creator (or who they designate);</li> <li>the title of the image, if there is one;</li> <li>the specific Creative Commons license and version under which the image is licensed;</li> <li>alternatively, if the creator of the work requests you attribute it in a specific way, you should do as they ask.</li> </ul> <p>Ideally, you should link as many of these items to either the original source, or to their canonical location online. While section 4(b) implies that you <em>must</em> provide the URI of the CC license, in practical terms naming the license should be enough (the Creative Commons FAQ <a href="http://wiki.creativecommons.org/FFAQ#How_do_I_properly_attribute_a_Creative_Commons_licensed_work.3F">says</a>, &#8220;it is nice if the license citation links to the license on the CC website&#8221;). This is, I think, especially true if you link to the location where the image originates and where the original <a class="zem_slink" title="Copyright" href="http://en.wikipedia.org/wiki/Copyright" rel="wikipedia">copyright</a> and license terms are explained (for example, linking to the Flickr page for a CC licensed photo stored on Flickr &#8212; actually, <a title="http://www.flickr.com/guidelines.gne" href="http://">this is mandatory</a> for Flickr images if the image is hosted by Flickr).</p> <p>In practical terms, I think the following example is the kind of attribution that is appropriate under the license: &nbsp;&#8220;<a href="http://www.flickr.com/photos/krisnelson/4213915751/">Agatha on the porch</a>&#8221; by Flickr user <a href="http://krisnelson.org">Kristopher Nelson</a>, used under a <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/deed.en">Creative Commons Attribution-Noncommercial-Share Alike 2.0</a> license. This citation includes (1) the title of the picture, (2) where it comes from, (3) who created it, and (4) what license applies.</p> <h4>Captions with WordPress</h4> <div> <dl class="wp-caption alignleft" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/krisnelson/4213915751/"><img class=" " src="http://farm3.static.flickr.com/2677/4213915751_050a74b704_m.jpg" alt="" width="240" height="180" /></a></dt> <dd class="wp-caption-dd">&#8220;Agatha on the porch&#8221; by Flickr user&nbsp;Kristopher Nelson, used under a&nbsp;Creative Commons Attribution-Noncommercial-Share Alike 2.0 license.</dd> </dl> </div> <p>In <a href="http://www.wordpress.org">WordPress</a>, you can put this information in as a caption in the popup image add/modify box.</p> <p>Because the WordPress caption is styled with <a href="http://codex.wordpress.org/CSS">CSS</a> (via the &#8220;wp-caption&#8221; class that WordPress puts in), you may make it appear in a variety of creative ways. You can even <a href="http://wpengineer.com/filter-caption-shortcode-in-wordpress/">&#8220;filter&#8221; the code produced by WordPress</a> if you want the HTML to appear differently.</p> <h4>Captions with HTML &amp; CSS</h4> <p>If you do not use WordPress, you could use HTML and CSS similar to the following (<a href="http://www.w3.org/Style/Examples/007/figures">courtesy of the W3C site</a>):</p> <p>[sourcecode language=&#8221;html&#8221;]<br /> &lt;div class=&#8221;figure&#8221;&gt;<br /> &lt;p&gt;&lt;img src=&#8221;eiffel.jpg&#8221; width=&#8221;136&#8243; height=&#8221;200&#8243; alt=&#8221;Eiffel tower&#8221;&gt;&lt;/p&gt;<br /> &lt;p&gt;Scale model of the Eiffel tower in Parc Mini-France&lt;/p&gt;<br /> &lt;/div&gt;<br /> [/sourcecode]</p> <p>And some CSS:</p> <p>[sourcecode language=&#8221;css&#8221;]<br /> div.figure {<br /> float: right;<br /> width: 25%;<br /> border: thin silver solid;<br /> margin: 0.5em;<br /> padding: 0.5em;<br /> }<br /> div.figure p {<br /> text-align: center;<br /> font-style: italic;<br /> font-size: smaller;<br /> text-indent: 0;<br /> }<br /> [/sourcecode]</p> <p>(For more about this, including additional discussion and examples, see <a href="http://www.w3.org/Style/Examples/007/figures">Figures &amp; Captions</a> at the W3C site.)</p> <h4>Rollover Image Captions with jQuery</h4> <p>Another approach would be to use <a href="http://jquery.com/">jQuery</a> and a plugin such as <a href="http://www.newmediacampaigns.com/page/jcaption-a-jquery-plugin-for-simple-image-captions">jCaption</a> or <a href="http://web.archive.org/web/20111217085147/http://thirdroute.com:80/projects/captify/">Captify</a>, which will automatically generate sophisticated rollover captions. These look very nice and keep your site design clean, while providing all the required information.</p> <h4>Using the Title Attribute of the Image Tag</h4> <p>If you choose, you may instead put all the information into the title attribute of the &lt;img&gt; tag, along with linking the image to the source page, like this:</p> <p>[sourcecode lang=&#8221;html&#8221;]<br /> &lt;a href=&#8221;http://www.flickr.com/photos/krisnelson/4213915751/&#8221;&gt;&lt;img title=&#8221;&amp;quot;Agatha on the porch&amp;quot; by Flickr user Kristopher Nelson, used under a Attribution-Noncommercial-Share Alike 2.0 license.&#8221; src=&#8221;http://farm3.static.flickr.com/2677/4213915751_050a74b704_s.jpg&#8221; /&gt;&lt;/a&gt;<br /> [/sourcecode]</p> <p>Like jQuery-based approaches, this has the benefit of making the information fully available (although you cannot insert links, so make sure the image itself links to the source page). It also keeps your page design uncluttered. It doesn&#8217;t look as nice as the rollover approach, but it is simple to implement on any site.</p> <h4>Use Zemanta</h4> <p><a href="http://www.zemanta.com/">Zemanta</a> allows you to easily select and insert images into your posts (along with related links and more). It takes care of adding appropriate captions and links so you don&#8217;t have to. It&#8217;s image selection is good, but I like to pick my own images generally, and to style them my way. Nonetheless, it&#8217;s an excellent tool that I recommend highly.</p> <h4>Or Just Put it at the End</h4> <p>Finally, you could also add a simple attributional note to the bottom of your posts. This is a straightforward and easy approach, allows complete information and full links.</p> <h4>Conclusions</h4> <p>Creative Commons licensed images are a wonderful resource for bloggers. Use of such images is free and easy &#8212; provided you follow a few requirements that primarily serve to acknowledge the creator of the work. If you, like me, didn&#8217;t always do the best job of this, take some time to go back over your posts and make sure everything is in order. And remember, whether you use CC licensed images, pay for stock photos, use your own, or rely on the public domain, photographers and authors will always like to hear from you if you like their work, so let them know.</p> <p>So just remember to check to make sure the images you want to use are licensed properly, and that you&#8217;re meeting the terms of the license, and enjoy!</p> <h4>More Resources</h4> <ul> <li><a href="https://inpropriapersona.com/2010/01/five-sources-of-free-photographs-for-your-blog/">Five sources of free images for your blog</a></li> <li><a href="http://wiki.creativecommons.org/FFAQ#How_do_I_properly_attribute_a_Creative_Commons_licensed_work.3F">How do I properly attribute a Creative Commons licensed work?</a> &#8211; from Creative Commons</li> <li><a href="http://www.newmediarights.org/guide/how_to/creative_commons/best_practices_creative_commons_attributions">Best Practices for Creative Commons attributions</a> &#8211; how to attribute works you reuse under a Creative Commons license</li> <li><a href="http://search.creativecommons.org/">Creative Commons Search</a> &#8211; easily find CC licensed images</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"> <p><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=0cffb7e3-8ece-4a1e-a84c-e5252b67ffd3" alt="" /></p> </div> "Don’t go to grad school!" https://inpropriapersona.com/articles/dont-go-to-grad-school/ Tue, 05 Jan 2010 17:00:59 +0000 6dc4cc2ad9f2b48f43e9712af37b4ead <p><a href="http://www.flickr.com/photos/wonderlane/3308971616/"><img class=" alignright" title="&quot;Suzzalo Library&quot; by Flickr user Wonderlane, used under a Creative Commons Attribution 2.0 license." src="http://farm4.static.flickr.com/3372/3308971616_6ff2d8b2b3_m.jpg" alt="" width="240" height="160" /></a></p> <p><a href="http://www.flickr.com/photos/wonderlane/3308971616/"><br /> </a>At least, don&#8217;t go to <a class="zem_slink" title="Graduate school" rel="wikipedia" href="http://en.wikipedia.org/wiki/Graduate_school">grad school</a> in the humanities. That&#8217;s the message I&#8217;ve been hearing from a number of sources, including this <a href="http://chronicle.com/article/Graduate-School-in-the-Huma/44846/">recent article</a> from <a class="zem_slink" title="The Chronicle of Higher Education" rel="wikipedia" href="http://en.wikipedia.org/wiki/The_Chronicle_of_Higher_Education">The Chronicle</a> of Higher Education:</p> <blockquote><p>It&#8217;s hard to tell young people that universities recognize that their idealism and energy &#8212; and lack of information &#8212; are an exploitable resource. For universities, the impact of graduate programs on the lives of those students is an acceptable externality, like dumping toxins into a river. If you cannot find a tenure-track position, your university will no longer court you; it will pretend you do not exist and will act as if your unemployability is entirely your fault. It will make you feel ashamed, and you will probably just disappear, convinced it&#8217;s right rather than that the game was rigged from the beginning.</p> <p>via <a href="http://chronicle.com/article/Graduate-School-in-the-Huma/44846/">Graduate School in the Humanities: Just Don&#8217;t Go &#8211; Advice &#8211; The Chronicle of Higher Education</a>.</p></blockquote> <p>But here I am, anyway, in a <a class="zem_slink" title="Doctor of Philosophy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Doctor_of_Philosophy">PhD</a> program in history. What makes me think this is a good idea despite all the evidence to the contrary? Or am I simply delusional? (Probably.)</p> <p>Recent law grads (me included) might suggest that going to law school isn&#8217;t such a good idea either, although that seems more to be a function of the current economic situation that a long-term trend, even if the legal profession is going through a &#8220;correction.&#8221; Long term, there will always be a demand for lawyers, in some form or another. (Debt is another issue that needs to be addressed.)</p> <p>But a humanities graduate program is different. It&#8217;s professional training for one purpose: to do research in the humanities and, to a lesser extent, to teach in the humanities. What&#8217;s more, fewer and fewer professional positions exist, and those that do are increasingly adjunct positions with limited job security (i.e., no tenure &#8212; but then, who else in today&#8217;s workforce benefits from anything like tenure?).</p> <p><a href="http://www.amazon.com/Last-Professors-Corporate-University-Humanities/dp/0823228606%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0823228606"></a></p> <p><a href="http://www.amazon.com/Last-Professors-Corporate-University-Humanities/dp/0823228606%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0823228606"><img class="alignleft" title="The Last Professors" src="http://ecx.images-amazon.com/images/I/51Ft3VrGbTL._SL160_.jpg" alt="" width="107" height="160" /></a>The humanities system (at least in large public universities, which provide the bulk of positions) is set up, many say, to exploit cheap grad student labor in order to teach over-enrolled undergraduates in an increasingly under-funded educational system. The role of the traditional humanities professor is dying out.</p> <p>True or not, social science or not, job prospects as a history professor are certainly difficult. So why am I in grad school?</p> <p>First, I chose to focus on science, not general history. Rightfully or not, a focus on science tends to equal greater job and funding opportunities.</p> <p>Second, I am not giving up law to focus on history. I fully intend to practice as a lawyer at least part time. (Diversification is important as much for individuals as for corporations, I believe.) So even if I can&#8217;t find a position as a tenure-track professor of history, I still have my law degree to draw on. I also spent 10 years in IT, and have that to draw on too.</p> <p>Third, the contacts I am making through the program are valuable in any field. I am, for example, volunteering for committee appointments with senior faculty and administrators.</p> <p>Fourth, I needed family medical insurance (if I lived in Canada or Europe, this wouldn&#8217;t be an issue) and the ability to spend more time at home than a first-year associate is allowed. Grad school, unlike law school, is funded and paid for.</p> <p>So am I crazy? I don&#8217;t think so. But I also don&#8217;t expect to have an tenure-track position waiting for me at the end, nor is my self-worth dependent on that.</p> "DECE seeks complex DRM that approximates the simple first-sale doctrine that consumers expect" https://inpropriapersona.com/articles/dece-seeks-complex-drm-that-approximates-the-simple-first-sale-doctrine-that-consumers-expect/ Mon, 04 Jan 2010 22:24:16 +0000 a6ddc30f23750fa998e92dcdc9e02d4a <p><a href="http://www.flickr.com/photos/71715246@N00/521723595/"><img class="alignright" title="&quot;DRM&quot; by Flickr user rebopper, used under a Creative Commons Attribution 2.0 license." src="http://farm1.static.flickr.com/206/521723595_8659c5d91f_m.jpg" alt="" width="240" height="183" /></a>Consumer electronics manufacturers and Hollywood studios have a problem: when customers purchase a movie online, they expect to be able to watch it anywhere &#8212; but, thanks to <a class="zem_slink" title="Digital rights management" rel="wikipedia" href="http://en.wikipedia.org/wiki/Digital_rights_management">Digital Rights Management</a> (DRM), they can&#8217;t easily do it (unless they bought a physical DVD and rip it, or otherwise remove the DRM, which is what Hollywood is desperate to prevent).  The <a class="zem_slink" title="Digital Entertainment Content Ecosystem" rel="wikipedia" href="http://en.wikipedia.org/wiki/Digital_Entertainment_Content_Ecosystem">Digital Entertainment Content Ecosystem</a> (DECE) wants to change that:</p> <blockquote><p>The group is setting out to create a common digital standard that would let consumers buy or rent a digital video once and then play it on any device. It might sound technical, but it could be crucial to persuading consumers to buy all the splashy new Internet-connected gear that tech companies will demonstrate at C.E.S., like HDTVs and set-top boxes that can download TV shows and films.</p> <p>via <a href="http://www.nytimes.com/2010/01/04/technology/04video.html?partner=rss&amp;emc=rss">Hollywood and Technology Companies Work to Make Digital Video Portable &#8211; NYTimes.com</a>. (For a more customer-focused discussion, see <a href="http://gizmodo.com/5439325/deces-plans-for-digital-movie-purchases-may-confuse-and-anger-you?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+gizmodo%2Ffull+%28Gizmodo%29&amp;utm_content=Google+Reader">DECE&#8217;s Plans for Digital Movie Purchases May Confuse and Anger You &#8211; Downloads &#8211; Gizmodo</a>.)</p></blockquote> <p>Of course, we already have common digital standards that allow exactly this. What we don&#8217;t have is a common system that implements shared restrictions (DRM) and allows Hollywood to specify what you can (or, more usually, can&#8217;t) do with the product you purchased on all your devices.</p> <p>To a consumer &#8212; me, for example &#8212; buying media with DRM that limits what I can do through technological and contractual restrictions feels an awful lot like renting that media. Why should I spend extra to &#8220;buy&#8221; something that won&#8217;t let me use it to the maximum extent provided by law? Sure, I don&#8217;t expect to be able to make copies and sell them, but I do expect  to be able to fully utilize what I purchase: sell it, play it when and how I like, and so on.</p> <p>This intuitive expectation by consumers has a legal concept associated with it: first sale. That doctrine, which applies to most of what a regular person has been purchasing for years, cuts off the ability of the original seller to determine what happens next in the stream of commerce. I can sell my new purchase, destroy it, rent it, take it apart, and so on. I can&#8217;t necessarily copy it (at least, not if patent protection exists, or copyright applies), but I can pretty much do what I want with it. This is why CD resale stores exist, why <a class="zem_slink" title="Netflix" rel="homepage" href="http://www.netflix.com/">Netflix</a> can mail you DVDs in a day, and why Craigslist (and newspaper classifieds) can exist. It is what customers have come to expect from the products they purchase.</p> <p>But it isn&#8217;t what they get from movies purchased online (or from e-books, for that matter) or often from music either (although Apple and others have finally pushed back enough to remove DRM from most music &#8212; perhaps this is a lesson for Hollywood?). Instead, content owners (who may or may not be creators or producers) want to &#8220;license&#8221; your access to media, and to stick DRM on to limit what you can do with it &#8212; but they still want you to pay them the same amount as if you were purchasing something that gave you full first-sale rights. And then they wonder why consumers balk?</p> <p>I don&#8217;t mind paying a small amount to &#8220;rent&#8221; (I know roughly what that means) limited-use media. But if I buy something, I want to own it, and I want full first-sale rights to it, not some technological restriction that artificially limits my use (and tends to break across manufacturers and over time).</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=c15eb21c-81c7-4155-b9d4-c04c8ace2047" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Why can the TSA subpoena bloggers to get at their sources?" https://inpropriapersona.com/articles/why-can-the-tsa-subpoena-bloggers-to-get-at-their-sources/ Fri, 01 Jan 2010 23:13:15 +0000 5a558f9859f0811e1b264cba575c59ce <p><a href="http://www.flickr.com/photos/timsamoff/391427627/"><img class="alignright" title="&quot;Here We Go Again&quot; by Flickr user Tim Samoff, used under a Creative Commons Attribution-No Derivative Works 2.0 license." src="http://farm1.static.flickr.com/157/391427627_62f2a23df4_m.jpg" alt="" width="240" height="180" /></a>The <a class="zem_slink" title="Transportation Security Administration" rel="homepage" href="http://www.tsa.gov">Transportation Security Administration</a> (TSA) issued a directive aimed at instituting new, possibly temporary, security measures after the recent attempt against a flight into Detroit. The TSA sent the document to airlines and airports around the world and was not classified. Nevertheless, after two bloggers published it on Dec. 30, the TSA sought details from them as to how they obtained the document, maintaining that &#8220;<a href="http://www.wired.com/threatlevel/2009/12/dhs-threatens-blogger/">it was not for public disclosure</a>.&#8221;</p> <p>As part of this, the TSA issued <a href="http://en.wiktionary.org/wiki/subpoena_duces_tecum">subpoenas duces tecum</a> (legal orders requiring that documents or information be produced) that sought to compel the two bloggers to reveal their sources. After a public outcry, the TSA &#8220;<a href="http://www.wired.com/threatlevel/2009/12/tsa-withdraws-subpoenas/">canceled the legal action and apologized for the strong-arm tactics agents used</a>.&#8221;</p> <p>Normally, subpoenas are issued by a court clerk or, more commonly, by attorneys working on a case who issue such subpoenas under the authority of the supervising court. The goal is to compel witnesses to either come to court or produce documents or information to be used in court. Enforcement is not automatic, but is instead sought through the court supervising the case, which has the power to punish someone who refuses to obey a subpoena without sufficient cause (as determined by the court).</p> <p>The subpoenas (or &#8220;subpenas&#8221;) in this situation, however, were not issued or supervised directly by a court, according to the <a href="http://www.elliott.org/blog/full-text-of-my-subpoena-from-the-department-of-homeland-security/">text of the document provided by Chris Elliot</a>, one of the targeted bloggers. Instead, they were issued by the TSA under authority granted to it by Congress in <a href="http://www4.law.cornell.edu/uscode/html/uscode49/usc_sec_49_00046104----000-.html">49 U.S.C. 46104</a>. (This authority is similar to that granted to District Attorneys for conducting investigations.) It grants the authority to the TSA to:</p> <blockquote><p>subpena witnesses and records related to a matter involved in the hearing or investigation from any place in the United States to the designated place of the hearing or investigation</p></blockquote> <p>The law does not grant to the TSA the authority to enforce subpoenas directly. Instead, the TSA must &#8220;<a href="http://www4.law.cornell.edu/uscode/html/uscode49/usc_sec_49_00046104----000-.html">petition a court of the United States to enforce the subpena</a>.&#8221; The court then conducts a hearing, and may impose penalties (including imprisonment).</p> <p>One can object to subpoenas on a variety of grounds. (Note that one of those grounds is not the Fourth Amendment, since this is not considered a &#8220;search&#8221; or a &#8220;seizure.&#8221;) The order may be overly broad or burdensome (although the court may simple require you be reimbursed for your expenses in that case) or may request confidential information protected by privilege (<a class="zem_slink" title="Attorney-client privilege" rel="wikipedia" href="http://en.wikipedia.org/wiki/Attorney-client_privilege">attorney-client privilege</a>, or doctor-patient, for example). Some states protect a journalist&#8217;s right to protect an anonymous source &#8212; but there is no equivalent federal &#8220;<a href="http://www.citmedialaw.org/shield-laws">shield law</a>.&#8221;</p> <p>This is why the TSA felt it could indeed demand information from the bloggers, and why it is very possible they could have succeeded in penalizing the two bloggers in court if they did not turn over the information they had. (Of course, there may have been other arguments that a lawyer experienced in this area could have wielded &#8212; so if you are subpoenaed and would prefer not to comply, consult an attorney.)</p> <p>For more on subpoenas generally, and how to respond to them, see: <a href="http://www.citmedialaw.org/legal-guide/responding-subpoenas">Responding to Subpoenas</a> by the Citizen Media Law Project. The Project also has a <a href="http://www.citmedialaw.org/legal-guide/legal-protections-sources-and-source-material">good guide to protecting sources and source material</a> more generally. I wrote about this previously in <a href=" /2009/05/journalist-shield-laws-and-bloggers.html">Journalist Shield Laws and Bloggers</a>.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Obama’s newest FOIA-related order a boon for historians" https://inpropriapersona.com/articles/obamas-newest-foia-related-order-a-boon-for-historians/ Wed, 30 Dec 2009 18:41:34 +0000 30fbb74089f60230aaaf3dd6e0121fd8 <p><a href="http://www.flickr.com/photos/hughelectronic/4095687741/"><img class="alignright" title="&quot;nate_redacted&quot; by Flickr user hughelectronic, used under a Creative Commons Attribution 2.0 license." src="http://farm3.static.flickr.com/2498/4095687741_44c827e819_m.jpg" alt="" width="240" height="160" /></a><a class="zem_slink" title="Barack Obama" rel="homepage" href="http://www.whitehouse.gov/">President Obama</a> came into office pledging greater openness, and his latest <a class="zem_slink" title="Executive order (United States)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Executive_order_%28United_States%29">executive order</a> seems to directly speak to that pledge &#8212; though it will likely benefit historical investigations especially:</p> <blockquote><p>President Obama signed an executive order on Tuesday that sets new rules for when government agencies can keep documents classified. The order is full of provisions that should make government transparency activists swoon. For example, within the next four years, the government will strive to declassify 400 million pages of historical documents.</p> <p>via <a href="http://www.npr.org/templates/story/story.php?storyId=122042999#commentBlock">Executive Order Reduces Total Of Classified Papers : NPR</a>.</p></blockquote> <p>The White House blog has more details after introducing the new order:</p> <blockquote><p>President Obama has issued a new executive order on &#8220;Classified National Security Information&#8221; (the Order) that addresses the problem of over-classification in numerous ways and will allow researchers to gain timelier access to formerly classified records.</p> <p>via <a href="http://www.whitehouse.gov/blog/2009/12/28/promoting-openness-and-accountability-making-classification-a-two-way-street">Promoting Openness and Accountability by Making Classification a Two-Way Street</a>.</p></blockquote> <p>Of particular importance to historians is the &#8220;principle that no records may remain classified indefinitely and provides enforceable deadlines for declassifying information exempted from automatic <a class="zem_slink" title="Declassification" rel="wikipedia" href="http://en.wikipedia.org/wiki/Declassification">declassification</a> at 25 years.&#8221; It directs the Archivist of the United States to &#8220;develop priorities for declassification activities under the NDC’s purview, with input from the general public and after taking into account researcher interest and the likelihood of declassification.&#8221;</p> <p>As an historian with at least a passing interest in U.S. government documents, I believe this will help to, at the very least, establish a new sense of priorities in executive agencies that may counter their tendencies towards secrecy (if in doubt, classify it) that was bolstered under the <a class="zem_slink" title="Presidency of George W. Bush" rel="wikipedia" href="http://en.wikipedia.org/wiki/Presidency_of_George_W._Bush">Bush Administration</a>.</p> <p>The order may have less of an impact on contemporary transparency issues, despite the White House blog posting calling this the promotion of &#8220;openness and accountability.&#8221; The order specifically recognizes the importance of secrecy in the name of national security, for example, and certainly there have been instances of continued resistance to <a class="zem_slink" title="Freedom of Information Act (United States)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Freedom_of_Information_Act_%28United_States%29">FOIA</a> requests recently. (For more on FOIA battles, see: EFF&#8217;s <a href="http://www.eff.org/issues/foia/">FOIA Litigation for Accountable Government</a> and the Sunlight Foundation on the <a href="http://blog.sunlightfoundation.com/taxonomy/term/Freedom-of-Information-Act/">Freedom of Information Act</a>.)</p> <p>In short, this will be good for historians, but may be of limited use for those more interested in contemporary issues.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ada65b64-9453-4f2a-b8de-2f94ba3863d7" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "A guide for non-lawyers researching legal problems" https://inpropriapersona.com/articles/a-guide-to-non-lawyers-for-researching-legal-problems/ Tue, 29 Dec 2009 16:30:29 +0000 356c36f55c72c9e4d6b723d56f12785e <p><a href="http://www.flickr.com/photos/lselibrary/3925726691/"><img class="alignright" title="&quot;Collecting books for readers in the reserve stacks, 1964&quot; from the LSE Library." src="http://farm3.static.flickr.com/2628/3925726691_62f87e8d5e_m.jpg" alt="" width="240" height="185" /></a><a href="http://blawg.law.sc.edu/">Cocky Law Blawg</a> brings us this note:</p> <blockquote><p>The Legal Information Services to the Public (LISP) Special Interest Section of the <a class="zem_slink" title="American Association of Law Libraries" rel="wikipedia" href="http://en.wikipedia.org/wiki/American_Association_of_Law_Libraries">American Association of Law Libraries</a> (AALL) just completed its latest version of How to Research a Legal Problem: A Guide for Non-Lawyers. It’s available in PDF and Word formats from the <a href="http://www.aallnet.org/sis/lisp/">LISP website</a>.</p> <p>via <a href="http://blawg.law.sc.edu/?p=856">How to Research A Legal Problem: A Guide for Non-Lawyers « Cocky Law Blawg</a>.</p></blockquote> <p>The mission of LIPS is to improve access to legal education and to promote legal information services to the public. In addition to the <a href="http://www.aallnet.org/products/HowToResearchLegalProblem.pdf">Guide for Non-Lawyers</a>, they also provide a <a href="http://web.archive.org/web/20130703190109/http://www.aallnet.org/sis/lisp/toolkit.htm">toolkit for public librarians</a>.</p> <p>Now that access to case law is even easier for the general public to access (via <a href="http://scholar.google.com/">Google Scholar</a>), this kind of Guide is critical to avoid misunderstandings of the unique complexities and challenges of <a class="zem_slink" title="Legal research" rel="wikipedia" href="http://en.wikipedia.org/wiki/Legal_research">legal research</a>.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=633350a4-6d47-4e48-b532-8af3ac9b9cf8" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Making a personal site more dynamic" https://inpropriapersona.com/articles/making-a-personal-site-more-dynamic/ Mon, 28 Dec 2009 16:35:20 +0000 58a4a9fc80920eb5255daa9cd45d77f6 <p><a href="https://inpropriapersona.com/wp-content/uploads/2009/12/krisnelson.png"><img class="alignright size-thumbnail wp-image-1149" title="Thumbnail of krisnelson.org" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_640,w_640,x_80,y_0/h_150,w_150/v1514416900/krisnelson_rxa4hc.png" alt="" /></a>As part of a recent attempt to update my personal information online, I decided to update <a href="http://krisnelson.org">my personal site</a> to better reflect my current activities and background. (Keeping your online profiles updated is an important part of managing your Web presence, and I combined this effort with an update to <a href="http://linkedin.com">Linkedin</a>, <a href="http://plaxo.com">Plaxo</a>, my <a href="http://www.google.com/profiles">Google Profile</a>, and so on).</p> <p>As part of my content update, I ideally wanted my site to be more dynamic, so that I did not need to touch it very often, yet to still have it be more up-to-date and fresh. My idea was to rely on updates I would make to other sites anyway, and to leverage those updates to drive my personal site too. While I could have relied on widgets and simple Javascript, this kind of material is not picked up by search engines, and did not allow enough design flexibility for my taste. Thus, I chose to switch to <a href="http://php.net/">PHP</a> and code things by hand, but sticking to simple approaches (<a href="http://en.wikipedia.org/wiki/RSS">RSS</a>, for example, or straightforward <a href="http://en.wikipedia.org/wiki/Api">APIs</a> &#8212; I may once have been a professional coder, but these days I&#8217;m looking for simplicity first).</p> <p>Here are the areas I focused on first on <a href="http://krisnelson.org">my main page</a>:</p> <h4>About</h4> <p><a href="https://inpropriapersona.com/wp-content/uploads/2009/12/krisnelson-about11.jpg"><img class="alignleft size-thumbnail wp-image-1107" title="krisnelson.org - About" src="https://inpropriapersona.com/wp-content/uploads/2009/12/krisnelson-about-150x150.jpg" alt="" /></a>This section I maintain locally for now, because the kind of language I&#8217;m using is adapted specifically for this combination of personal and professional site. I considered pulling it from other profile sites, such as Linkedin or my Google Profile, but the APIs were either too complex (for my purposes) or non-existent. On the other hand, the miniature about section at the bottom-right of the page is pulled dynamically from an unexpected source: <a href="http://www.goodreads.com">Goodreads</a>, which has a simple and effective API that makes this easy. (You&#8217;ll need to create an account with Goodreads, and <a href="http://www.goodreads.com/api">request a key</a>.)</p> <p>To accomplish this with PHP, look at <a href="http://php.net/manual/en/book.simplexml.php">SimpleXML</a>. Use it something like this:</p> <p>[sourcecode language=&#8221;php&#8221;]<br /> $data = file_get_contents($url);<br /> $profile = simplexml_load_string($data);<br /> <!--?<span class="hiddenSpellError" pre=""-->php echo $profile-&gt;user-&gt;about ?&gt;<br /> [/sourcecode]</p> <h4>My Updates</h4> <p>I pull these from <a href="http://www.twitter.com">Twitter</a>, using a simplified version of the <a href="http://twitter.com/goodies/">Twitter-provided Javascript widget</a> (although the API is quite straightforward too).</p> <p>[sourcecode language=&#8221;html&#8221;]<br /> <script type="text/javascript">/ <![CDATA[ src</span>="http://twitter.com/javascripts/blogger.js" type="text/javascript"> / ]]></script><br /> <script type="text/javascript">/ <![CDATA[ src</span>="http://twitter.com/statuses/user_timeline/YOURTWITTERNAME.json?callback=twitterCallback2&count=6" type="text/javascript"> / ]]></script><br /> [/sourcecode]</p> <h4>Featured Posts</h4> <p><a href="https://inpropriapersona.com/wp-content/uploads/2009/12/krisnelson-featured1.jpg"><img class="size-thumbnail wp-image-1108 alignright" title="krisnelson.org - Featured Posts" src="http://res.cloudinary.com/krisnelson/image/upload/c_crop,h_228,w_228,x_0,y_75/h_150,w_150/v1514416903/krisnelson-featured_eenz7v.jpg" alt="" /></a>These come from the most recent posts on <a href="">in propria persona</a>, and are pulled in via RSS feeds (using PHP and <a href="http://simplepie.org/">SimplePie</a>). Other highlighted stories on my main page are put on there manually for now, although I have considered pulling from the RSS feed that <a href="http://www.ssrn.com/">SSRN</a> provides on articles I put there. The basic code for RSS processing looks like this:</p> <p>[sourcecode language=&#8221;php&#8221;]<br /> $feed = new SimplePie(&#8216;/feed/&#8217;);<br /> $feed-&gt;handle_content_type();<br /> <!--?<span class="hiddenSpellError" pre=""-->php foreach ($feed-&gt;get_items() as $item): ?&gt;</p> <ul> <li><a href="<?<span class=">php echo $item-&gt;get_permalink(); ?&gt;&#8221;&gt;<!--?php echo $item--->get_title(); ?&gt;</a></li> </ul> <p><!--?php <span class="hiddenSpellError" pre="php "-->endforeach; ?&gt;<br /> [/sourcecode]</p> <h4>My Comments</h4> <p><a href="http://www.backtype.com">BackType</a> scours the Web for comments I make on blogs, and provides them to me in an easy-to-use RSS feed. You&#8217;ll need to create an account there, then use the RSS feed they provide just like I used the RSS feed to display articles from my blog.</p> <h4>Reading</h4> <p><a href="https://inpropriapersona.com/wp-content/uploads/2009/12/krisnelson-reading1.jpg"><img class="alignleft size-thumbnail wp-image-1109" title="krisnelson.org - Reading" src="https://inpropriapersona.com/wp-content/uploads/2009/12/krisnelson-reading-150x142.jpg" alt="" /></a><a href="http://www.goodreads.com">Goodreads</a> provides a a nice, and simple, RSS feed to show the books on a particular &#8220;shelf&#8221; (Goodreads was far easier to pull from than any other similar site) &#8212; the links go to <a href="http://books.google.com/books">Google Books</a> in order to access the &#8220;preview&#8221; functionality Google offers. The code is similar to this:</p> <p>[sourcecode language=&#8221;php&#8221;]<br /> $goodreads = new SimplePie(&#8216;GOODREADS RSS URL&#8217;);<br /> $goodreads-&gt;handle_content_type();<br /> foreach ($goodreads-&gt;get_items() as $item):<br /> $image = $item-&gt;get_item_tags(&#8221;, &#8216;book_small_image_url&#8217;); $image = $image[0][&#8216;data&#8217;];<br /> [/sourcecode]</p> <h4>Publications</h4> <p>My <a href="http://krisnelson.org/pubs.php">publications page</a> has a few of the same sections that my main page has, but emphasizes the list of articles and materials I&#8217;ve published (either online or in print journals). This list &#8212; the core of the page &#8212; is pulled from an RSS feed that originates with <a href="http://www.refworks.com">RefWorks</a>, an online citation management service from ProQuest. The management interface isn&#8217;t pretty, but the service works well for creating and managing bibliographies for academic papers. Thus, since I&#8217;ll use the service anyway, why not leverage it for this purpose too?</p> <h4>Final Thoughts</h4> <div style="float: right;"><a href="http://friendfeed.com/krisnelson"><img style="border: 0;" src="http://friendfeed.com/embed/widget/krisnelson/v-3/num-1/format-png/width-200" alt="View my FriendFeed" /></a></div> <p>The specific approach I&#8217;ve taken here obviously requires some technical knowledge. Still, the idea of keeping your site more dynamic and up-to-date can be incorporated into virtually any site, using tools like <a href="http://www.google.com/webmasters/gadgets/">Google Gadgets</a> or widgets from sites like <a href="http://www.twitter.com">Twitter</a> or <a href="http://www.friendfeed.com">FriendFeed</a>. Even more simply, you may choose to simple update your site in small ways on a regular basis. Alternatively, some people have chosen to use sites like <a href="http://www.posterous.com">Posterous</a> or <a href="http://www.tumblr.com">Tumblr</a> to centralize their personal site in a easy-to-update, miniature blog.</p> <p>The goal is to give your personal site a more active, engaging feel that encourages visitors seeking information about you to respond positively to your Web presence.</p> "Scientists choose citations for “discriminatory” reasons" https://inpropriapersona.com/articles/scientists-choose-citations-for-discriminatory-reasons/ Wed, 23 Dec 2009 16:30:45 +0000 2d2f9e803fe8dd4241bc93225e470cce <p>Researchers in Spain recently published an examination of scientific citation practices, and discovered the obvious: scientists don&#8217;t use citations purely for altruistic reasons.<a href="http://www.flickr.com/photos/moria/212136629/"><img class="alignright" title="&quot;Science Editor Journal&quot; by Flickr user Heather Kennedy, used under a Creative Commons Attribution 2.0 license." src="http://farm1.static.flickr.com/77/212136629_34817d3c95_m.jpg" alt="" width="240" height="180" /></a></p> <blockquote><p>Citations in science are important as a mechanism to follow the evolution of science and because they are employed as an indicator as to the importance of scientists and institutions: the higher the number of citations of an article, the greater is its recognition. This measure of success implies increased sources of funding, recognition, salaries, etc.</p> <p>According to Camacho Miñano and Núñez Nickel, the problem arises when the authors, instead of altruistically choosing original sources which facilitate the ideas on which their reasoning is constructed, cite because of spurious interests, attempting to increase the possibility of successfully publishing in the scientific journals.</p> <p>via <a href="http://www.sciencedaily.com/releases/2009/12/091220175056.htm?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+sciencedaily+%28ScienceDaily%3A+Latest+Science+News%29">Discrimination in the citations that scientists use</a>.</p></blockquote> <p>My immediate reaction is, well, <em>not shock: </em>of course scientists use &#8220;spurious&#8221; criteria when choosing what and who to cite! Would anyone who has prepared a scientific paper for submission to a <a class="zem_slink" title="Peer review" href="http://en.wikipedia.org/wiki/Peer_review" rel="wikipedia">peer-reviewed</a> journal actually disagree? Scientific articles need to get published, after all, and scientific ideas need to be supported against dispute and disagreement. This is true even if the science is &#8220;good&#8221; and &#8220;true.&#8221;</p> <p><!-- <a href="http://ecx.images-amazon.com/images/I/41P6WB723YL._SL160_.jpg" mce_href="http://ecx.images-amazon.com/images/I/41P6WB723YL._SL160_.jpg"><img class="alignleft size-full wp-image-1078" title="Science in Action" src="https://inpropriapersona.com/wp-content/2009/12/41P6WB723YL._SL160_.jpg" mce_src="https://inpropriapersona.com/wp-content/2009/12/41P6WB723YL._SL160_.jpg" alt="Science in Action" width="97" height="160" /></a> --> Still, it&#8217;s nice to see research that recognizes this, as too often people view science as so objectively true as to be free of social influences, politics, etc. But realizing that this is not true does not make scientific discoveries or innovations any less true, just adds back in some human complexity and social context.</p> <p>For more on this concept, try writers like <a class="zem_slink" title="Bruno Latour" href="http://en.wikipedia.org/wiki/Bruno_Latour" rel="wikipedia">Bruno Latour</a> and works like <a class="zem_slink" title="Science in Action : How to Follow Scientists and Engineers Through Society" href="http://www.amazon.com/Science-Action-Scientists-Engineers-Through/dp/0674792904%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dzemanta-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0674792904" rel="amazon">Science in Action</a>. Not uncontroversial in its whole, but it does do an excellent job opening up discussion on the &#8220;non-scientific&#8221; aspects of scientific articles. (No one in the law should be surprised by any of this, but attorneys sometimes seem to forget regardless.)</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://zzzoot.blogspot.com/2009/09/granting-system-turns-young-scientists.html">&#8220;The granting system turns young scientists into bureaucrats and then betrays them&#8221;</a> (zzzoot.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090820/0153145940.shtml">Open Science And Closed Science: Aren&#8217;t Papers Supposed To Be A Part Of The Conversation?</a> (techdirt.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f20eb53c-7412-4f2b-998d-5ebaac9b37bb" alt="" /></div> "Law school is harder than grad school" https://inpropriapersona.com/articles/law-school-is-harder-than-grad-school/ Tue, 22 Dec 2009 16:45:15 +0000 1df3378881f04d337741ba6d6f5e089c <div class="zemanta-img" style="margin: 1em; display: block;"> <p><a href="http://www.flickr.com/photos/8623220@N02/3389737637"><img class=" alignright" title="Columbia Graduation (1913) from the Library of Congress" src="http://farm4.static.flickr.com/3577/3389737637_0532b421bc_m.jpg" alt="" width="240" height="175" /></a></p> </div> <p>I&#8217;ve been debating <a href="https://inpropriapersona.com/2009/09/law-school-vs-graduate-school/">the difference between law school and grad school</a> since I started a PhD program this fall. (I&#8217;m talking about the humanities and social sciences &#8212; I don&#8217;t know if this applies in other fields!) Granted, grad school is a huge amount of difficult and complex reading. Since it&#8217;s essentially professional training for academics, it also means learning a new working environment, a new kind of jargon, and a new bureaucracy. What it isn&#8217;t &#8212; and what law school is &#8212; is a whole new way of thinking about and approaching the world.</p> <blockquote><p>Now that it&#8217;s exam season, and I’m facing the prospect of reading 100 Intro to IP exam answers, I confront again the great puzzle: What is it about the Law that is so difficult for people to &#8220;get&#8221;? I think I have the answer to that. The Law is hard &#8211;uniquely hard, I’m tempted to say &#8212; because you demonstrate your expertise not so much by displaying what you know, but by displaying what you don’t know.</p> <p>via <a href="http://volokh.com/2009/12/17/why-studying-law-is-so-hard/">The Volokh Conspiracy » Blog Archive » Why Studying Law is So Hard</a>.</p></blockquote> <p>This captures at least one aspect of the alternative way of thinking that&#8217;s required by studying law: issue spotting. That is, finding and focusing on what you don&#8217;t know instead of what you do. The entire 1L year is like this: shaking up your analysis and forcing you to approach problems in a different way.</p> <p>Yes, grad school requires learning new approaches, new theories, new ways of thinking. Some of this even makes your head spin. But it simply doesn&#8217;t require the same radical realignment that law school does. What you learned as an undergraduate applies to grad school &#8212; but not so much to law school. It&#8217;s like starting a new job, versus emigrating to a new country.</p> <p>And that&#8217;s why I think law school is harder than grad school.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=05b0bcb3-d596-45da-bbd3-29acf8905c0a" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Finding the diamonds in the rough in the “blogosphere”" https://inpropriapersona.com/articles/finding-the-diamonds-in-the-rough-in-the-blogosphere/ Sun, 20 Dec 2009 20:20:51 +0000 acae05e14184eebe794e875ca2da199d <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Rough_diamond.jpg"><img class="zemanta-img-configured" title="Nearly octahedral diamond crystal in matrix." src="http://upload.wikimedia.org/wikipedia/commons/thumb/d/d7/Rough_diamond.jpg/300px-Rough_diamond.jpg" alt="Nearly octahedral diamond crystal in matrix." width="300" height="226" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>I&#8217;ve been giving a lot of thought over the weekend to the problem of finding good content buried amidst all the noise on the Internet, especially when it comes to blog articles from lesser-known sources. (This is true for readers looking for quality content, but it&#8217;s also true for authors seeking readers.) Although I&#8217;ve been struggling with this problem for a while, this recent post from <a class="zem_slink" title="Louis Gray" href="http://louisgray.com/" rel="homepage">Louis Gray</a> really resonated with me:</p> <blockquote><p>In essence, the incentives, for the most part, do not tilt in favor of writing unique stories or doing the required research necessary to get a full story, to get quotes from a source, or find data points that back up analysis.</p> <p>There are going to be pockets of the Web that harbor original ideas, a focus on quality and data, and there are going to be other places where copying, scraping, and shortcuts are going to rule the day.</p> <p>via <a href="http://blog.louisgray.com/2009/12/growing-grumblings-on-tech-news-dont.html">louisgray.com: Growing Grumblings on Tech News Don&#8217;t Address Incentives</a>.</p></blockquote> <p>I run into this problem when, as a researcher, I seek useful analysis on topics I am investigating. <a class="zem_slink" title="Google" href="http://google.com" rel="homepage">Google</a> tends to turn up sources with high &#8220;<a class="zem_slink" title="PageRank" href="http://en.wikipedia.org/wiki/PageRank" rel="wikipedia">PageRank</a>,&#8221; which reflects a certain &#8220;wisdom of the crowds&#8221; when it comes to breaking stories, but stumbles when looking for more specific content, or insightful analysis. I often have to wade through what Mike Arrington of <a class="zem_slink" title="TechCrunch" href="http://www.techcrunch.com" rel="homepage">TechCrunch</a> calls &#8220;fast-food content&#8221; from content mills of various sorts (including, often, well-known blogs).</p> <p>As a result, I turn to sources I know (like <a href="http://ssrn.com">SSRN</a> or blogs I already know who are not quite on target) and spend inordinate amounts of time painstakingly, manually <em>finding</em> decent sources of information (which usually means big blogs). Usually I miss the odd, insightful posts from &#8220;little guy&#8221; blogs.</p> <p>Note that turning up top blogs in niche is not too hard (<a href="http://alltop.com">Alltop</a> is a good place to start). Many of them are quite good (the crowd is good for something), especially for getting the pulse of a niche.</p> <p>But what happens when you want something beyond the latest and greatest happenings? What about all those little blogs out there that occasionally produce brilliant content, but are never going to compete (and probably aren&#8217;t trying to) with <a href="http://techcrunch.com">TechCrunch</a> (or even <a href="http://louisgray.com">louisgray.com</a>)?</p> <p>Regular journalism (<a href="http://salon.com">Salon</a>, for example) can be good for this (especially in politics), although the lack of links to sources makes it difficult to use such pieces as launching points for more research. (More academic articles are better for this, but can be long, complex, and specialized.)</p> <p>Some ideas, thoughts, and sources:</p> <ul> <li>I encourage well-known bloggers and big blogs to link to lesser-known, but insightful posts on blogs &#8212; even if the small guy is not an up-and-coming, next-big-thing discovery. (It would be great if journalists could do the same, but since traditional news outlets seem unable to move forward to embrace the Web, I don&#8217;t hold out much hope for this.)</li> <li><a class="zem_slink" title="Digg" href="http://digg.com" rel="homepage">Digg</a> and <a class="zem_slink" title="Reddit" href="http://reddit.com/" rel="homepage">Reddit</a> can sometimes turn up good content, but this is another case of crowdsourcing not always producing good results. Content that rises tends to fall into certain patterns and appeal to a certain demographic or mindset. Good, but uninteresting-to-the-masses articles tend to get classified with spam.</li> <li><a class="zem_slink" title="StumbleUpon" href="http://stumbleupon.com" rel="homepage">StumbleUpon</a> can be better than Reddit or Digg at allowing niche content, but because it tends to feel random, it&#8217;s use for specific research is limited &#8212; I&#8217;ve never had much luck searching it for useful content.</li> <li>Google (and its competitors) should consider finding a way to &#8220;de-rank&#8221; content mills in some fashion. (Yes, I know they provide a good deal of revenue via advertising, so perhaps this will never happen.) Meanwhile, <a class="zem_slink" title="Google Blog Search" href="http://blogsearch.google.com/" rel="homepage">Google Blog Search</a> and Google Scholar are useful, if imperfect, tools.</li> <li>Web tools like <a class="zem_slink" title="Alltop" href="http://alltop.com" rel="homepage">AllTop</a> and <a class="zem_slink" title="PostRank" href="http://postrank.com" rel="homepage">PostRank</a> are useful tools, although both tend to highlight top <em>blogs</em> in a niche, not top posts (which is still very useful).</li> <li>&#8220;Bog rolls&#8221; are still useful sources, even if their use is dying off, but again tend to turn up niche blogs, not specific content.</li> <li>Academic sources like SSRN, or PubMed, are useful for certain kinds of specific research, but they can be too specialized and too in-depth.</li> </ul> <p>Any other ideas? I&#8217;m still looking.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=a8cfea86-b02f-4058-853f-0d03791d1e56" alt="" /></div> "Why should we keep others from selling our work?" https://inpropriapersona.com/articles/why-should-we-keep-others-from-selling-our-work/ Sat, 19 Dec 2009 00:14:23 +0000 fa08c7aac201d1b3444643ab8549e013 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/22828405@N04/4930848567"><img title="The caterpillar does all the work but the butt..." src="http://farm5.static.flickr.com/4078/4930848567_55a670a7e1_m.jpg" alt="The caterpillar does all the work but the butt..." width="240" height="203" /></a><figcaption class="wp-caption-text">Image by ramesh.rasaiyan via Flickr</figcaption></figure> </div> <p>Techdirt discusses why you <em>shouldn&#8217;t</em> be concerned if someone &#8220;steals&#8221; your work and sells it, noting that &#8220;it&#8217;s not necessarily a bad thing&#8221;:</p> <blockquote><p>If someone actually figures out something that works well, then that&#8217;s useful info to us, and would allow us to then incorporate those findings into our own offering. That&#8217;s actually good for everyone&#8230;</p> <p>via <a href="http://techdirt.com/articles/20091210/0530007290.shtml">Is It Really Such A Problem If People Sell Your Works? Or Is It Just Free Market Research? | Techdirt</a>.</p></blockquote> <p>I don&#8217;t disagree with this reasoning, at least in the case of the professional production of <a class="zem_slink" title="Intellectual property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_property">intellectual property</a> (not necessarily <em>for profit</em>), and most especially when the producer continues to produce content. Thus, this idea makes perfect sense in the case of Techdirt (or most media companies, Twitterers, blogs, newspapers, and so on), since their real value is not in any one particular story, but rather in the relationship between readers/consumers and producers/innovators.</p> <p>I do worry about &#8220;one-off&#8221; artists &#8212; painters, designers, novelists, musicians &#8212; anyone who may invest countless hours in the production of a single item that can then be easily reproduced at virtually zero cost. (Note that my above points would apply to a music label, perhaps, or even a movie studio, since they produce a constant stream of content which can create relationships.) How do we encourage the small-time innovator who may not produce more than a few works? How do we keep free-riders (I might include music labels and publishers in this list&#8230;) from discouraging true, one-off innovations by people who may not be interested in innovating in business as well?</p> <p>I do not have a good answer to this, but I think it&#8217;s an important question. (I also think this possibility is used by media companies to &#8220;hide the ball&#8221; when it comes to their desire to hold onto profitable IP.) If we don&#8217;t find some way to resolve it, I suspect we may never have proper IP reform that works for the &#8220;little guy.&#8221;</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=9010a8cd-0c7d-41dc-8db3-e146cf884d91" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Applying Robert Merton’s “The Normative Structure of Science” to the law" https://inpropriapersona.com/articles/applying-robert-mertons-the-normative-structure-of-science-to-the-law/ Fri, 18 Dec 2009 17:00:32 +0000 2c42868dcb4f25aa8d0027698b21243d <p>As part of an irregular series focusing on my graduate work in law and technology, I&#8217;m going to occasionally highlight some of the more theoretical material I work on: <a href="http://www.amazon.com/gp/product/0226520927/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0226520927&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=434VU2UFDLWALQHD"><img class="alignright" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0226520927&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /></a><img style="border: none !important; margin: 0px !important;" src="https://ir-na.amazon-adsystem.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0226520927" alt="" width="1" height="1" border="0" /></p> <p><a class="zem_slink" title="Robert K. Merton" href="http://en.wikipedia.org/wiki/Robert_K._Merton" rel="wikipedia">Robert Merton</a>, in &#8220;The Normative Structure of Science&#8221; (from <a href="http://www.amazon.com/gp/product/0226520927/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0226520927&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=434VU2UFDLWALQHD">The Sociology of Science: Theoretical and Empirical Investigations</a>), posits four sets of &#8220;institutional imperatives&#8221; that together &#8220;comprise the ethos of modern science&#8221;: universalism, communism, disinterestedness, and organized skepticism. How well do these four sets of imperatives describe the &#8220;ethos of modern law&#8221;?</p> <p><a href="http://www.flickr.com/photos/wwworks/2222548359/"><img class="alignleft" title="Earth" src="http://farm3.static.flickr.com/2316/2222548359_e6a0b97e2b_t.jpg" alt="" width="98" height="100" /></a>First, according to Merton, science should be universal. That is, the &#8220;acceptance or rejection of claims&#8221; should not depend on &#8220;personal or social attributes of their protagonist,&#8221; including &#8220;race, nationality, religion, class, and personal qualities.&#8221; &#8220;Objectivity,&#8221; writes Merton, &#8220;precludes particularism,&#8221; and science is independent of particular ideologies or nationalities. Merton, in fact, explicitly connects norms in science with norms of law: &#8220;the ethos of democracy includes universalism,&#8221; he writes, further arguing that the &#8220;political apparatus [i.e., statutory law, regulatory agencies, and so on] may be required to put democratic values into practice and to maintain universalistic standards.&#8221;</p> <p>Despite having a national and regional character, Merton&#8217;s universalism permeates American visions of what the law should be. Thus, there are strict limits on the ways that race, national origin, and so on can be taken into account under the law, and judges and juries are expected to dispense with ideology when &#8220;finding facts&#8221; and ruling on legal issues. They are instead entreated to simply &#8220;apply the law&#8221; in a uniform and impartial manner. Of course, in law as in science, the implementation of universalism is imperfect, and may at times be &#8220;affirmed in theory and suppressed in practice.&#8221;</p> <p><a href="http://www.flickr.com/photos/umjanedoan/497364007/"><img class="alignright" title="Law books" src="http://farm1.static.flickr.com/225/497364007_b28f03366a_m.jpg" alt="" width="192" height="144" /></a>A second Mertonian element of science is what he terms &#8220;communism,&#8221; in which the &#8220;substantive findings of science are a product of social collaboration and are assigned to the community.&#8221; The American and English common law system is a particularly good example of this approach: as with Merton’s conception of &#8220;the essentially cooperative and selectively cumulative quality of scientific achievement,&#8221; the common law consists of, and builds upon, all the legal work that has come before. Even our general (if occasionally contested) rule that statutory law is not subject to copyright builds on this communitarian vision.</p> <p>Disinterestedness is the third element of Mertonian science. It refers to a sense of moral integrity and ethical pursuit, along with a removal of personal or ideological end goals. Certainly this same goal is integral to the practice of law, especially as embodied in judges. In this sense, interestedness by a potential juror is grounds for exclusion. Ethical standards are explicit and exacting for attorneys, even if &#8212; apparently unlike scientists in Merton&#8217;s day &#8212; the general population has a low regard for the ethical standards of lawyers. (Interestingly, scientists have no such formal ethical guidelines.) Personal interests are to be set aside, and the interests of the client (or of &#8220;the people&#8221; or similar abstract notion of societal interest) are to be substituted instead. This may well point out a distinction between a scientists and lawyers (other than judges, at least): scientists might claim to be putting science and the facts first, but lawyers are up front about putting the client first, and letting the so-called &#8220;adversarial system&#8221; sort out the truth &#8212; although despite this, lawyers have ethical obligations to at least avoid perpetuating falsehood.<a href="http://www.flickr.com/photos/nealey/2365885779/"><img class="alignleft" title="Judging" src="http://farm3.static.flickr.com/2035/2365885779_4e401e714a_m.jpg" alt="" width="192" height="144" /></a></p> <p>Finally, and relatedly, &#8220;organized skepticism is variously interrelated with the other elements of the scientific ethos.&#8221; It requires a &#8220;temporary suspension of judgment and the detached scrutiny of beliefs in terms of empirical and logical criteria.&#8221; Certainly this same approach is expected of judges and juries, although lawyers representing their clients are expected to balance skepticism with belief in their client, and focus their skepticism on opposing counsel and their arguments. Once again in the law, the adversarial system, combined with disinterested and objective judges and juries, is supposed to ferret out the truth.</p> <p>Whether science imitates the law, or law imitates science, or both are responding to larger societal pressures to conform to certain standards (such as Merton&#8217;s theory that Puritanism contributed to the growth of modern science), the ideal scientist similar to an ideal lawyer (and even more like the ideal judge). Unlike attorneys, however, the ideal scientist represents truth, not a client and her interests. Lawyers explicitly recognize and speak of the need for a social system &#8212; the courtroom, its adversarial system and arbiters &#8212; to get at the truth. But perhaps because scientists do not generally acknowledge serving a &#8220;client,&#8221; even when they work for a corporation, the existence of a social system constructing science is less obvious to many. This is true even though scientists themselves realize how necessary, for example, peer reviewed journals are to the production of scientific truth.</p> <p><em>Excerpted from &#8220;<a href="http://ssrn.com/abstract=1520779">Constructing a Useful Theory of Knowledge</a>,&#8221; available in draft form at SSRN.</em></p> "My top free tools for law firms and other small businesses" https://inpropriapersona.com/articles/my-top-free-tools-for-law-firms-and-other-small-businesses/ Thu, 17 Dec 2009 16:30:51 +0000 7f2ad0ae291a582f685c53a2f863e7ad <p><a href="http://www.flickr.com/photos/spadgy/313251515/"><img class="alignright" title="&quot;Keyboard 2&quot; by Flickr user John Ward, used under a Creative Commons Attribution 2.0 license." src="http://farm1.static.flickr.com/103/313251515_9d6929f671_m.jpg" alt="" width="240" height="160" /></a>Carolyn Elefant recently provided her <a href="http://www.myshingle.com/2009/12/articles/law-practice-management/some-free-tools-for-starting-a-law-firm/">list of free tools for starting a law firm</a>. In this same spirit, I would like to present my list of top tools, all of which I&#8217;ve used at various times myself. (Some of these echo her recommendations.) Before I do that, let me quote from her blog:</p> <blockquote><p>Though I don&#8217;t believe that it&#8217;s necessarily prudent or always cost-effective to run a law firm on freebies alone, free services, when used appropriately can give lawyers a wide range of capabilities that once would have been cost prohibitive.  And of course, don&#8217;t forget that yet another free tool for starting a law firm is MyShingle!</p> <p>via <a href="http://www.myshingle.com/2009/12/articles/law-practice-management/some-free-tools-for-starting-a-law-firm/">Some Free Tools for Starting A Law Firm : My Shingle</a>.</p></blockquote> <p>Before proceeding, let me remind anyone with confidential client information to be particularly careful, as you do not want to let an accidental slip-up reveal such details to the entire Web. (And there&#8217;s an open debate on whether it&#8217;s a good idea for attorneys to keep confidential information on 3rd-party servers, so think about that before doing it. I think it&#8217;s fine, personally, but you should think about the issues first.)</p> <p>First, before we move on to tools to manage your business, you might want to consider alternatives to the very expensive Lexis and Westlaw. One new choice is <a href="http://scholar.google.com/">Google Scholar</a>, which has added case law to its index. I&#8217;ve written about <a href="https://inpropriapersona.com/2007/07/my-top-ten-general-legal-research-sites.html">some other choices</a> before, along with <a href="https://inpropriapersona.com/2009/05/10-alternative-legal-research-sites.html">more inexpensive alternatives</a>,  including:</p> <ul> <li>Your local law library, where research is generally free</li> <li><a href="http://www.findlaw.com/">FindLaw</a>, a free case law database</li> <li><a href="http://www.fastcase.com/">Fastcase</a>, a reasonably priced legal research service (not free)</li> </ul> <p>Once you can do research, you&#8217;ll need clients. In addition to the usual (paid) approaches, consider establishing your presence on <a href="http://www.twitter.com">Twitter</a>, connecting to others on <a href="http://www.linkedin.com">LinkedIn</a>, and networking with your old classmates on <a href="http://www.facebook.com">Facebook</a>.</p> <p><a href="http://www.freshbooks.com/"><img class="alignright" title="FreshBooks logo" src="https://inpropriapersona.com/wp-content/2009/12/freshbooks2.gif" alt="" width="151" height="80" /></a>Of course, once you have clients, you will need to keep track of them, along with your projects. You&#8217;ll also need to bill them. For this, I recommend either Cashboard (&#8220;time tracking, expenses, invoicing, estimates, and online payments done your way&#8221;) or <a href="http://www.freshbooks.com/">FreshBooks</a> (&#8220;Send, track and collect payments quickly. Great for teams, freelancers and service providers&#8221;). Both interface with <a href="http://basecamphq.com/">Basecamp</a> (below) to provide effective invoicing and billing. I have used both Cashboard and FreshBooks, and both are excellent choices.</p> <p>Although you may be small, or may not even have more than token office space, you may want or need to work with a team &#8212; whether that&#8217;s collaborating with a virtual paralegal or a law student intern, or with a more specialized attorney. For this, take a hint from professional Web developers, and consider 37signals&#8217; <a href="http://basecamphq.com/">Basecamp</a>. It lets you share files, meet deadlines, assign tasks, and centralize feedback.</p> <p>Microsoft Exchange may cost much more than you can afford &#8212; and it certainly is more complex than you need. But you still need what it provides, especially email and calendaring. Throw in Web-based document editing and collaboration tools which are quite capable of replacing Microsoft Word for most document preparation tasks, and you have a winning combination in <a href="http://www.google.com/apps/intl/en/group/index.html">Google Apps</a>. Basic services are free, but you may wish to upgrade to a paid <a href="http://www.google.com/apps/intl/en/business">business account</a> for guaranteed service-level agreements and support.</p> <p>You&#8217;re going to need to manage your telephone presence. <a href="http://www.google.com/voice/">Google Voice</a> can help give you a central number for all your clients, and even transcribes your voicemails to text &#8212; all for free. (Consider VoIP services and Internet fax services to save money, too. One nice tip: <a href="http://www.box.net">Box.net</a>, mentioned below, allows you to send faxes via <a href="http://www.efax.com">efax.com</a> for free.)</p> <p>You&#8217;ll need a Web presence, too. While you can certainly use free blogging services like <a href="http://www.wordpress.com">WordPress.com</a> or <a href="http://www.blogger.com">Blogger</a> (both recommended), you&#8217;ll probably want to buy a custom domain so you look more professional.</p> <p>I highly recommend backing up your documents off site. <a href="http://mozy.com/">Mozy</a> is one nice choice &#8212; there&#8217;s a free intro plan, and paid plans if you need more space or service. Box.net is a good storage space if you need to collaborate or share files. Additionally, <a href="http://www.dropbox.com">Dropbox</a> provides simple cross-platform synching, so your laptop (which you&#8217;ve encrypted, right?) and your desktop files stay up to date.</p> <p>All of the above provide fine services when you are starting out, and can grow as you grow. Just remember not to be cheap when it really counts &#8212; once you have some income coming in, I recommend an upgrade to the paid versions of these services to get full and professional support.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://mashable.com/2009/10/26/socia-media-entrepreneurs/">10 of the Best Social Media Tools for Entrepreneurs</a> (mashable.com)</li> <li class="zemanta-article-ul-li"><a href="http://sixrevisions.com/web-applications/five-favorite-web-applications-of-designers/">Five Favorite Web Applications of Designers</a> (sixrevisions.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/09/could-you-scrap-microsoft-office-applications/">Could you scrap Microsoft Office applications?</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/09/lawyers-should-leave-their-laptops-at-home-when-traveling-abroad/">Lawyers should leave their laptops at home when traveling abroad</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/09/is-virtual-lawyering-the-future/">Is virtual lawyering the future?</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b56a523e-d72e-48ca-ac07-892f6e50eff0" alt="" /></div> "Moving away from traditional publishers" https://inpropriapersona.com/articles/moving-away-from-traditional-publishers/ Wed, 16 Dec 2009 00:34:01 +0000 f4eb85b613b48a122ef77d3adc55ecd9 <p><a href="http://www.flickr.com/photos/george_eastman_house/3122869849/"><img class="alignright" title="Reading" src="http://farm4.static.flickr.com/3198/3122869849_8c7aabf74d_m.jpg" alt="" width="240" height="214" /></a>As I <a href="https://inpropriapersona.com/2009/12/a-dispute-over-the-rights-to-e-book-editions/">noted a few days ago</a>, there has been increasing attention to the idea of authors moving away from traditional publishers when it comes to e-books. Here&#8217;s more from the New York Times about one author doing just that:</p> <blockquote><p>Ever since electronic books emerged as a major growth market, New York’s largest publishing houses have worried that big-name authors might sign deals directly with e-book retailers or other new ventures, bypassing traditional publishers entirely.</p> <p>Now, one well-known author is doing just that.</p> <p>Stephen R. Covey, one of the most successful business authors of the last two decades, has moved e-book rights for two of his best-selling books from his print publisher, Simon &amp; Schuster, a division of the CBS Corporation, to a digital publisher that will sell the e-books to Amazon.com for one year.</p> <p>via <a href="http://www.nytimes.com/2009/12/15/technology/companies/15amazon.html?pagewanted=1&amp;_r=1&amp;partner=rss&amp;emc=rss">Stephen R. Covey Grants E-Book Rights to Amazon &#8211; NYTimes.com</a>.</p></blockquote> <p>I predict we&#8217;ll see more of this, unless traditional publishers provide more value to authors than they do now.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.guardian.co.uk/books/2009/dec/15/stephen-covey-amazon-ebook-deal&amp;a=10473539&amp;rid=ba8199a0-32c5-4be0-943a-850258aa8965&amp;e=79197d26de3898d055acfcffb7b34395">Stephen Covey&#8217;s digital rights deal with Amazon startle New York publishers</a> (guardian.co.uk)</li> <li class="zemanta-article-ul-li"><a href="http://go-to-hellman.blogspot.com/2009/12/when-amazon-and-kindle-win.html">When Amazon and Kindle Win</a> (go-to-hellman.blogspot.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ba8199a0-32c5-4be0-943a-850258aa8965" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Google executives on trial for criminal liability in Italy" https://inpropriapersona.com/news/2009/google-executives-on-trial-for-criminal-liability-in-italy/ Tue, 15 Dec 2009 03:44:03 +0000 d50e2aa2aee3708bdc7395fac16e3a90 <p><a href="http://www.flickr.com/photos/eduitor/2511935701/"><img class="alignright" title="&quot;Il Tricolore - Italian Flag&quot; by Flickr user @l+q, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license." src="http://farm4.static.flickr.com/3024/2511935701_80ddb01824_m.jpg" alt="The Italian flag" width="240" height="226" /></a></p> <p>I&#8217;m generally in favor of holding companies liable for their actions &#8212; after all, if we treat corporations as &#8220;persons&#8221; under the law, then they should have responsibilities as well as protections and benefits. But I&#8217;m not sure about holding executives criminally liable &#8212; perhaps in the case of knowing pollution or conspiracy to cover up product dangers &#8212; but not, I think, for actions they are not directly responsible for, as in this case from Italy:</p> <blockquote><p>Along with three other Google executives, Mr. Fleischer now faces criminal charges of defamation and privacy violations in a case that could have far-reaching implications for Google — and, the company argues, a potentially chilling effect on other Internet companies operating in Italy and elsewhere in Europe.</p> <p>via <a href="http://www.nytimes.com/2009/12/14/technology/internet/14google.html?_r=1&amp;partner=rss&amp;emc=rss">Google Faces a Different World in Italy &#8211; NYTimes.com</a>.</p></blockquote> <p>Alternatively, perhaps holding senior executives personally liable (and potentially facing jail time, although it would be suspended under Italian law in this case) would force companies to better comply with the law? (I still think it goes too far.)</p> "A dispute over the rights to e-book editions" https://inpropriapersona.com/articles/a-dispute-over-the-rights-to-e-book-editions/ Sun, 13 Dec 2009 00:44:18 +0000 18cdd979d951e0192caac4b6081db6ab <p><a id="aptureLink_UqU4JhWYBZ" style="padding-top: 0px; padding-right: 6px; padding-bottom: 0px; padding-left: 6px; display: inline !important;" href="http://www.uberpc.es/files/2008/10/kindle.jpg"><img class="alignright" style="border: 0px initial initial;" title="The Amazon Kindle" src="http://www.uberpc.es/files/2008/10/kindle.jpg" alt="" width="275px" height="328px" /></a>That publishers and authors (or their estates) should be arguing over rights to production electronic editions (a growing market thanks to new products like Amazon&#8217;s <a class="zem_slink" title="Amazon" rel="homepage" href="http://amazon.com/">Kindle</a>) is no surprise. This sort of dispute is a standard part of <a class="zem_slink" title="Contract" rel="wikipedia" href="http://en.wikipedia.org/wiki/Contract">contract law</a>, and comes up anytime a new market not anticipated in a contract opens up.</p> <blockquote><p>William Styron may have been one of the leading literary lions of recent decades, but his books are not selling much these days. Now his family has a plan to lure digital-age readers with e-book versions of titles like &#8220;<a class="zem_slink" title="Sophie's Choice" rel="amazon" href="http://www.amazon.com/Sophies-Choice-William-Styron/dp/0394461096%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dzemanta-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0394461096">Sophie&#8217;s Choice</a>,&#8221; &#8220;<a class="zem_slink" title="The Confessions of Nat Turner: A Novel" rel="amazon" href="http://www.amazon.com/Confessions-Nat-Turner-Novel/dp/0375508031%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dzemanta-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0375508031">The Confessions of Nat Turner</a>&#8221; and Mr. Styron&#8217;s memoir of depression, &#8220;<a class="zem_slink" title="Darkness Visible: A Memoir of Madness" rel="amazon" href="http://www.amazon.com/Darkness-Visible-Madness-William-Styron/dp/0394588886%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dzemanta-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0394588886">Darkness Visible</a>.&#8221;</p> <p>But the question of exactly who owns the electronic rights to such older titles is in dispute, making it a rising source of conflict in one of the <a class="zem_slink" title="Publishing" rel="wikipedia" href="http://en.wikipedia.org/wiki/Publishing">publishing industry</a>&#8216;s last remaining areas of growth.</p> <p>via <a href="http://www.nytimes.com/2009/12/13/business/media/13ebooks.html?_r=2&amp;pagewanted=1&amp;partner=rss&amp;emc=rss">Authors and Publishers Argue Over Digital Rights to Older Books &#8211; NYTimes.com</a>.</p></blockquote> <p>While the dispute is, in many respects, not really new, I still think its interesting that the courts so far seem to be on the side of authors (but remember, this is really about individual contract interpretations, not really about broad categories of disputants, although broad cases could influence future decisions):</p> <blockquote><p>In 2002, <a class="zem_slink" title="Random House" rel="wikipedia" href="http://en.wikipedia.org/wiki/Random_House">Random House</a> sued RosettaBooks, an e-book publisher, for copyright infringement when Rosetta signed contracts with authors &#8212; including Mr. Styron &#8212; to release digital versions of previously published novels.</p> <p>In its suit, Random House relied on wording in its contracts that granted it all rights to publish the works &#8220;in book form.&#8221; In its letter to agents on Friday, Random House invoked the same wording to defend its right to publish e-books of backlist titles.</p> <p>In 2002, a federal judge in Manhattan denied Random House’s request for a preliminary injunction against RosettaBooks, ruling that &#8220;in book form&#8221; did not automatically include e-books. An appellate court similarly denied Random House’s request.</p></blockquote> <p>What I find most telling in this is the argument that authors and their estates are seeking alternatives to traditional publishers because those publishers are not offering a very competitive royalty rate on digital editions. After all, they argue, digital works costs less to produce and distribute &#8212; so publishers, who do less work, deserve a smaller slice of the pie.</p> <p>Obviously traditional publishers do not like this, since it cuts into their potential profits &#8212; and backlist titles account for a significant amount of steady income for publishers.</p> <p>Still, if the market can support paying authors more &#8212; isn&#8217;t that the &#8220;natural&#8221; path the book industry will take in the future? The Web certainly can support non-traditional publishing avenues, and while these leave off many of the benefits publishers provide (marketing and editing, especially), why couldn&#8217;t electronic editions find a different way to market? (This is especially true when the editing has already been paid for through earlier, hard-copy sales. And are publishers really pushing backlist publications enough to justify their payout?)</p> <p>Can traditional publishers fend off this move through litigation and forceful contract negotiations? Or will we see increasing alternatives to traditional publishers in the e-book realm?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www10.nytimes.com/2009/10/14/books/14fried.html%3F_r%3D5%26partner%3Drss%26amp%3Bemc%3Drss&amp;a=8532647&amp;rid=2781a9c5-8d20-4094-ba5d-b1216dc5fd74&amp;e=3034090101c7775b386a07dd5870d150">New E-Book Company to Focus on Older Titles</a> (nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www10.nytimes.com/2009/12/13/business/media/13ebooks.html%3F_r%3D5%26partner%3Drss%26amp%3Bemc%3Drss&amp;a=10391511&amp;rid=2781a9c5-8d20-4094-ba5d-b1216dc5fd74&amp;e=a0f9e82e766456dd30ecb0bc711a607e">In Familiar Books, a Plot Twist: Battle on Electronic Rights</a> (nytimes.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2781a9c5-8d20-4094-ba5d-b1216dc5fd74" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Trademarks and the Apple App Store" https://inpropriapersona.com/articles/trademarks-and-the-apple-app-store/ Fri, 20 Nov 2009 18:40:50 +0000 71018375f4d4b8d4ba6edc9ecc3f33ea <div style="float:right;"> <div class="zemanta-img zemanta-action-dragged" style="display: block; width: 260px; margin: 1em;"> <div> <dl class="wp-caption alignright" style="width: 260px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/iphone"><img title="Image representing iPhone as depicted in Crunc..." src="http://www.crunchbase.com/assets/images/resized/0001/9797/19797v1-max-250x250.jpg" alt="Image representing iPhone as depicted in Crunc..." width="250" height="195" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> </div> <p>Apple&#8217;s &#8220;app store&#8221; continues to generate controversy through its rejections. I must agree with the following analysis that use of icons&#8211;especially as provided through an API expressly for that purpose should not violate trademark law (or copyright for that matter).</p> <p>It is, I think, rather like using &#8220;Xerox&#8221; or &#8220;Coca-Cola&#8221; to specifically identify those products&#8211;since the whole basis of trademark is to essentially avoid consumer confusion, this usage is not a violation.</p> <p>The only other potential problem would be too suggest that the trademark is being used to suggest endorsement&#8211;also not an issue here, I think, but perhaps more possible.</p> <p>Here&#8217;s the situation: Airfoil is using icons made available through Apple&#8217;s API to identify the source of a transmission. Apple rejected the app, saying that it&#8217;s display of Apple logos (via the Apple-provided API) violated IP laws.</p> <blockquote><p>Airfoil Speakers Touch’s display of these icons falls under fair use. If there’s any doubt to this, look at all the places where Apple displays other people’s icons without their explicit consent, like the Finder, the Dock, Spotlight, etc.</p> <p>Daring Fireball also has a good, in-depth discussion of various arguments put forth, including a look at just what the iPhone SDK agreement says.</p> <p>Ultimately, this is not a trademark issue, but simply a matter of Apple enforcing arbitrary and inconsistent requirements for iPhone applications. There’s no legal requirement for them to forbid use of their icons, and no benefit to them in doing so. By insisting on not allowing us to display their icons, Apple is simply wasting everybody’s time, including their own, and inconveniencing our mutual users.</p> <p>via <a href="http://www.rogueamoeba.com/utm/">Under The Microscope</a>.</p></blockquote> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://apple.slashdot.org/story/09/11/19/164229/Respected-Developers-Begin-Fleeing-the-App-Store?from=rss">Respected Developers Begin Fleeing the App Store</a> (apple.slashdot.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=778d8635-3518-4e69-8d1a-f0ed653d1552" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The new Anti-Counterfeiting Trade Agreement is… problematic" https://inpropriapersona.com/news/2009/the-new-anti-counterfeiting-trade-agreement-is-problematic/ Fri, 06 Nov 2009 16:30:13 +0000 f4be74312a68444318c0c0d32eec2a9d <blockquote><p>The internet chapter of the <a class="zem_slink" title="Anti-Counterfeiting Trade Agreement" href="http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement" rel="wikipedia">Anti-Counterfeiting Trade Agreement</a>, a secret copyright treaty whose text Obama&#8217;s administration refused to disclose due to &#8220;national security&#8221; concerns, has leaked. It&#8217;s bad.</p> <p><a href="http://www.boingboing.net/2009/11/03/secret-copyright-tre.html">Secret copyright treaty leaks. Its bad. Very bad. &#8211; Boing Boing</a>.</p></blockquote> <p>Michael Geist has more:</p> <blockquote><p>Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty).</p> <p><a href="http://www.michaelgeist.ca/content/view/4510/125/">The ACTA Internet Chapter: Putting the Pieces Together</a>.</p></blockquote> <p>He adds that the draft text is modeled on the U.S.-South Korea free trade agreement, and focuses on five issues:</p> <blockquote><p>1. Baseline obligations inspired by Article 41 of the <a class="zem_slink" title="Agreement on Trade-Related Aspects of Intellectual Property Rights" href="http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights" rel="wikipedia">TRIPs</a> which focuses on the enforcement of <a class="zem_slink" title="Intellectual property" href="http://en.wikipedia.org/wiki/Intellectual_property" rel="wikipedia">intellectual property</a>.<br /> 2. A requirement to establish third-party liability for copyright infringement.<br /> 3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).<br /> 4. Anti-circumvention legislation that establishes a <a class="zem_slink" title="World Intellectual Property Organization" href="http://www.wipo.int/" rel="homepage">WIPO</a>+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.<br /> 5. Rights Management provisions, also modeled on U.S. free trade treaty language.</p></blockquote> <p>For me, one key problem area is that #4 in Geist&#8217;s list apparently eliminates the fair use/fair dealing exception to anti-circumvention provisions (<a class="zem_slink" title="Reverse engineering" href="http://en.wikipedia.org/wiki/Reverse_engineering" rel="wikipedia">reverse engineering</a>, computer testing, privacy, etc.). Fair use is absolutely key to a proper balance between allowing <em>reuse</em> that encourages new innovation and rewarding <em>existing</em> innovation through <em>temporary</em> monopolies.</p> <p>Geist points out, too, that the treaty does not stop there. It contains additional provisions &#8220;that include statutory damages, search and seizure powers for border guards, anti-camcording rules, and [requirements for] mandatory disclosure of personal information.&#8221;</p> <p>This is not a direction that I support, because I think it actually <em>limits</em> innovation and development, rather than supporting them.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f1045626-9a98-4e19-aeb0-09aee81df89e" alt="" /></div> "How does fair-use law work?" https://inpropriapersona.com/articles/how-does-fair-use-law-work/ Sat, 24 Oct 2009 16:30:51 +0000 c337246623d4d8c07157cccbc0cc6cb3 <p><a href="http://www.flickr.com/photos/byflickr/2584948850/"><img class="alignright" title="Photography and The Law by Byflickr" src="http://farm4.static.flickr.com/3156/2584948850_a208f7e5a5_m.jpg" alt="" width="240" height="169" /></a>This is an excellent write-up about how fair use works, along with its complexities (and areas where it is more straightforward, generally where courts have already ruled on a very similar use previously):</p> <blockquote><p>If you kill someone, you&#8217;ve committed murder, right? Yes &#8212; unless he was about to shoot you first, in which case we call it self-defense. Fair use takes that same concept to copyright law. It is all about justification, and this is a key to understanding it. Fair use allows use of a work that would ordinarily constitute infringement, <em>if</em> that use is justified (or excused, if you like) with some compelling reason.</p> <p><a href="http://www.slate.com/id/2233152/">How does fair-use law work? &#8211; By Tim Wu &#8211; Slate Magazine</a>.</p></blockquote> <p>Recommended reading.</p> "Microsoft update leaves Firefox users unexpectedly vulnerable" https://inpropriapersona.com/articles/microsoft-update-leaves-firefox-users-unexpectedly-vulnerable/ Fri, 16 Oct 2009 18:00:15 +0000 2b2bfefa137a8c87b0f3a506521b1b21 <p><img style="float:right;" title="Mozilla Firefox" src="http://upload.wikimedia.org/wikipedia/en/thumb/e/e3/Firefox-logo.svg/133px-Firefox-logo.svg.png" alt="Mozilla Firefox" width="133" height="127" /></p> <blockquote><p>An add-on that <a class="zem_slink" title="Microsoft" rel="homepage" href="http://www.microsoft.com">Microsoft</a> silently slipped into Mozilla&#8217;s <a class="zem_slink" title="Mozilla Firefox" rel="geolocation" href="http://maps.google.com/maps?ll=45.1238,-123.1138&amp;spn=1.0,1.0&amp;q=45.1238,-123.1138 (Mozilla%20Firefox)&amp;t=h">Firefox</a> last February leaves that browser open to attack, Microsoft&#8217;s security engineers acknowledged earlier this week.</p> <p>via <a href="http://news.idg.no/cw/art.cfm?id=5CF0A4A7-1A64-67EA-E45F5A54F2136086">Sneaky Microsoft plug-in puts Firefox users at risk ( &#8211; Internet &#8211; Software &#8211; Security )</a>.</p></blockquote> <p>I suppose somewhere in Microsoft&#8217;s licensing language there is an acknowledgment and release of liability for actions like this. Even so, I certainly don&#8217;t think most Microsoft customers expect updates to so directly compromise 3rd-party programs like Firefox &#8212; and I wonder what Microsoft&#8217;s legal responsibility would be, even with their licensing language, should this kind of action truly result in a major loss?</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b93cf5ce-76fc-4048-b16e-ca4ebb784f45" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Uniform bar exam drawing closer to reality" https://inpropriapersona.com/news/2009/uniform-bar-exam-drawing-closer-to-reality/ Fri, 16 Oct 2009 03:30:31 +0000 159f70af9ea8e7b8c2326a27381db0d4 <blockquote><p>It could mark one of the biggest changes for lawyers joining the profession since the first U.S. bar exam was given in Delaware in 1763 &#8212; a single bar exam aimed at standardizing attorney credentials nationwide.</p> <p>via <a href="http://www.law.com/jsp/article.jsp?id=1202434472731&amp;src=EMC-Email&amp;et=editorial&amp;bu=Law.com&amp;pt=Law.com%20Newswire%20Update&amp;cn=LAWCOM_NewswireUpdate_20091012&amp;kw=Uniform%20Bar%20Exam%20Drawing%20Closer%20to%20Reality">Law.com &#8211; Uniform Bar Exam Drawing Closer to Reality</a>.</p></blockquote> <p>Law is slow to develop, so this will take a while &#8212; but it&#8217;s a step in the right direction.</p> "Modern media centers: the hard 20% is socio-legal" https://inpropriapersona.com/articles/modern-media-centers-the-hard-20-is-socio-legal/ Wed, 14 Oct 2009 15:00:53 +0000 0800ec56a056d1a0f20656d3b7d4580e <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://en.wikipedia.org/wiki/Image:Image_Media_Center_Wiki.JPG"><img class=" " title="A media center system" src="http://upload.wikimedia.org/wikipedia/en/thumb/a/a5/Image_Media_Center_Wiki.JPG/300px-Image_Media_Center_Wiki.JPG" alt="A media center system" width="240" height="320" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://craphound.com/">Cory Doctorow</a> points out that the first 80% of creating a <a class="zem_slink" title="Media center" rel="wikipedia" href="http://en.wikipedia.org/wiki/Media_center">media center</a> is easy: a decent computer (I used an old Pentium III and an old PowerBook, but you can use newer tech if you&#8217;re not a poor student), video out (S-Video to an old-school TV, VGA or HDMI to a new HDTV), big hard drives, maybe network sharing (I used an Airport Extreme I inherited) so you can access media from multiple rooms. But what about content &#8212; &#8220;the other 20 percent&#8221;?</p> <blockquote><p>Now, onto the other 20 percent: the hard stuff. Recording digital TV off-air is trivial, but for cable and satellite, you’ve got to suck up to the copy-protection companies whose business-model stands between you and entertainment nirvana. They don’t want any &#8220;user-modifiable&#8221; stuff in their device chain, which destroys the elegant commodity solution and leaves nothing behind but a bunch of disposable, crufty, encumbered set-top &#8220;appliances&#8221; that have a thick crust of business model between you and the TV you’re paying for. These devices want to firewall off your personal media and the media you rip from the precious cable/satellite feeds, and maintain a locked-down path between those stored programs and your other devices. They want to pretend that a media server is a magical device, not a gigantic hard-disk with a couple AV connectors on the side.</p> <p>via <a href="http://sharelifeandsmile.kodak.com/technology/whats-easy-whats-hard/">What’s Easy, What’s Hard | Share Life &amp; Smile with the Kodak Theatre HD Player</a>.</p></blockquote> <p>Doctorow points out that getting media content is not a technical challenge. One can pull it through Bittorrent, <a class="zem_slink" title="RapidShare" rel="homepage" href="http://www.rapidshare.com">RapidShare</a>, or similar gray services; backup DVDs (purchased or rented); use Amazon or <a class="zem_slink" title="ITunes Store" rel="homepage" href="http://www.apple.com/itunes/">iTunes</a>; or record shows off the air (<a class="zem_slink" title="TiVo" rel="homepage" href="http://www.tivo.com">TiVo</a> like). This is all pretty easy, technically. But extending this to a larger scale?</p> <blockquote><p>That stuff is hard because it&#8217;s not technical, it&#8217;s social and legal. It requires a massive change in the thinking of entrenched execs who are betting they can fight the future until retirement and leave it all to be someone else’s problem.</p></blockquote> <p>I believe we&#8217;re currently in transition, and old systems are fighting hard to hold on to what they have via legal and social means, such as extending copyright and suing file sharers. The technical innovation exists despite (not because of this); when will the social, legal, or business innovation permit this innovation to grow and prosper? Or will the true innovation actually come when we integrate current socio-legal models with the new technology?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/10/12/media-centers-the-ex.html">Media centers: the exciting, the boring; the solved, the unsolved</a> (boingboing.net)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f3521228-a66d-4e66-862a-ba9ef440f937" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Law school vs. graduate school" https://inpropriapersona.com/articles/law-school-vs-graduate-school/ Mon, 28 Sep 2009 15:00:19 +0000 49173221994298a57ac3807e6bb59e4c <p><a href="http://www.flickr.com/photos/ndm007/2418965007/in/photostream/"><img class="alignright" title="&quot;Welcome To Hogwarts&quot; by Flickr user nathan makan, used under a Creative Commons license" src="http://farm3.static.flickr.com/2083/2418965007_902ec778d0_m.jpg" alt="" width="240" height="159" /></a>Last May I finished my 3L year, and am now the proud possessor of a <a class="zem_slink" title="Juris Doctor" rel="wikipedia" href="http://en.wikipedia.org/wiki/Juris_Doctor">JD</a>. On Thursday I began my first year program as a graduate student in the history of science. The experiences, perhaps unsurprisingly, have been strikingly different: law school is, ultimately, preparatory to practicing law as an attorney, and much of its emphasis is on tracking students in that direction.  <a class="zem_slink" title="Graduate school" rel="wikipedia" href="http://en.wikipedia.org/wiki/Graduate_school">Graduate school</a> in the humanities and social sciences, meanwhile, is about training future academics.</p> <p>Law school&#8217;s <a class="zem_slink" title="Pedagogy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Pedagogy">pedagogical</a> approach does not necessarily reflect this ultimately practical goal, though, and its focus on the so-called &#8220;<a class="zem_slink" title="Socratic method" rel="wikipedia" href="http://en.wikipedia.org/wiki/Socratic_method">Socratic method</a>&#8221; and on appellate case law is, many argue, an ineffective means of training effective lawyers:</p> <blockquote><p>Martha Minow, the new dean of Harvard Law School, where the <a id="aptureLink_1iQNq3jA0F" href="http://en.wikipedia.org/wiki/Christopher%20Columbus%20Langdell">Langdellian</a> method of teaching from appellate opinions was developed, has called for <a href="http://law.vanderbilt.edu/publications/vanderbilt-law-review/archive/volume-60-number-2-march-2007/download.aspx?id=2523">&#8220;another case method&#8221;</a> closer to the one used in business and public-policy schools, and consistent with W and L&#8217;s approach and Carnegie.</p> <p><a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/09/whats-happening-in-legal-education.html">PrawfsBlawg: What&#8217;s happening in legal education?</a>.</p></blockquote> <p>In contrast, graduate school is eminently suited to its goal of training new academics. We read other academics, write like academics, and teach and grade like the teachers we expect to be. Very disconnected from the &#8220;real world,&#8221; perhaps, and often overly bound up with theory &#8212; but still, if one is aiming to work in this area, the training is, in a very real sense, <em>practical.</em></p> <p>Law school, though, while pushing the practical, does not teach it. At most, one might argue that it teaches a kind of thinking &#8212; a very critical kind of thinking &#8212; but it does not teach students to practice law (nor to teach it, for that matter).</p> <p>I&#8217;m curious to see how my reflections on law school education change as I pursue my <a class="zem_slink" title="Doctor of Philosophy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Doctor_of_Philosophy">PhD</a> &#8212; I expect I might feel more positive about it as more time passes. We shall see.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=e21f9554-1039-4fae-b605-96e09cef619b" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Five lesser-known – but great – WordPress plugins" https://inpropriapersona.com/articles/five-lesser-known-but-great-wordpress-plugins/ Sun, 27 Sep 2009 15:00:06 +0000 56a019a066a597aa7563f624395ece9c <figure style="max-width: 112px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/28694005@N07/2829286479"><img class="zemanta-img-inserted zemanta-img-configured" title="wordpress logo" src="http://farm4.static.flickr.com/3067/2829286479_4c45d4aeac_m.jpg" alt="wordpress logo" width="112" height="112" /></a><figcaption class="wp-caption-text">Image by adria.richards via Flickr</figcaption></figure> <ol> <li> <p><a href="http://www.bad-neighborhood.com/login-lockdown.html">Login LockDown</a> &#8212; adds extra security to WordPress by restricting the number of failed login attempts.</p> </li> <li> <p><a href="http://sexybookmarks.net/">SexyBookmarks</a> &#8212; sure, there are many ways to add lists of sharing icons and links to your posts &#8212; but this one is <em>pretty</em>.</p> </li> <li> <p><a href="http://kingdesk.com/projects/wp-typography">wp-Typography</a> &#8212; easily improve the typography on your site, em and en dashes, hyphenation, and much more.</p> </li> <li> <p><a href="http://omninoggin.com/projects/wordpress-plugins/wp-greet-box-wordpress-plugin/">WP Greet Box</a> &#8212; give a simple little welcome message to visitors coming via various referrers, like Stumbleupon or Digg.</p> </li> <li> <p><a href="http://omninoggin.com/projects/wordpress-plugins/wp-minify-wordpress-plugin/">WP Minify</a> &#8212; compress CSS and Javascript to speed up page loads. It can be a little tricky &#8212; I find I have to specifically exclude all 3rd-party scripts and stylesheets &#8212; but it&#8217;s highly effective.</p> </li> </ol> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=9751d9e0-e8c9-4f8c-bef5-4b382078e02e" alt="" /></div> "Could you scrap Microsoft Office applications?" https://inpropriapersona.com/articles/could-you-scrap-microsoft-office-applications/ Mon, 14 Sep 2009 15:00:21 +0000 c33f9d3ecd538d54cf685fb041f58eb6 <div style="float:right"> <div class="zemanta-img" style="display: block; width: 310px; margin: 1em;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/Image:Lotus_Symphony_Documents.png"><img title="Lotus Symphony" src="http://upload.wikimedia.org/wikipedia/en/thumb/6/68/Lotus_Symphony_Documents.png/300px-Lotus_Symphony_Documents.png" alt="Lotus Symphony" width="300" height="220" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/Image:Lotus_Symphony_Documents.png">Wikipedia</a></dd> </dl> </div> </div> <p><a href="http://upload.wikimedia.org/wikipedia/en/thumb/0/05/Lotus_Symphony_icons.png/75px-Lotus_Symphony_icons.png"></a><a href="http://upload.wikimedia.org/wikipedia/en/thumb/0/05/Lotus_Symphony_icons.png/75px-Lotus_Symphony_icons.png"></a></div> <p>IBM&#8217;s <a href="http://en.wikipedia.org/wiki/IBM_Lotus_Symphony">Lotus Symphony</a> is a free-of-charge alternative to the ubiquitous Microsoft Office suite, based on Sun&#8217;s <a class="zem_slink" title="Open Source" rel="wikinvest" href="http://www.wikinvest.com/concept/Open_Source">open source</a> <a href="http://en.wikipedia.org/wiki/OpenOffice.org">OpenOffice</a> software. It purports to remain compatible with Microsoft&#8217;s &#8220;.doc&#8221; format (and newer incarnations), while removing licensing costs (but, not of course, support costs, since people still need training, technical support still costs money, etc.). Now they&#8217;ve decided to walk the walk:</p> <blockquote><p>360.000 IBM workers have been told to stop using Microsoft Office and switch to the Open Office-based software Symphony.</p> <p>via <a href="http://www.linux-magazine.com/Online/News/IBM-Throws-Out-Microsoft-Office"> IBM Throws Out Microsoft Office &#8211; Linux Magazine Online </a>.</p></blockquote> <p>In legal circles, standards change slowly &#8212; some courts still require <a class="zem_slink" title="WordPerfect" rel="homepage" href="http://www.corel.com/servlet/Satellite/us/en/Product/1151523326841">WordPerfect</a> documents, years after Microsoft Word eclipsed the former dominant word processor in other fields. Theoretically, of course, Symphony (or OpenOffice) still supports older formats &#8212; but I&#8217;m sure I&#8217;m not the only one to have suffered minor or major incompatibilities &#8212; even between different versions of Microsoft Word itself!</p> <p>So could you make the switch? Would the cost savings be worth the potential hassles?</p> <p>I mostly have switched away from Word. Unfortunately, I&#8217;ve had to keep one licensed copy of Word around to deal with strange issues that may crop up. Usually, these involve collaborative editing projects (&#8220;track changes&#8221;), or tightly formatted documents, like resumes (which just don&#8217;t perfectly translate).</p> <p>But I have not switched to OpenOffice, nor to Lotus Symphony. I increasingly believe OpenOffice and its kin are courting irrelevancy now that <a class="zem_slink" title="Google Docs" rel="homepage" href="http://docs.google.com">Google Docs</a> and other cloud based office suites are gaining ground, and my tools reflect this.</p> <p>Is the future in the cloud, not the open-source desktop? My work habits say, &#8220;Yes.&#8221; (But not without a nagging worry about confidentiality in the cloud.)</p> <p>So where is the future of legal computing going?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.theregister.co.uk/2009/08/20/ooxml_odf_interoperability/">Interoperability eludes Office and OpenOfffice</a> (theregister.co.uk)</li> <li class="zemanta-article-ul-li"><a href="http://www.computerworld.com/action/article.do?command=viewArticleBasic&amp;articleId=9134526">Lotus Symphony now reads Office 2007 documents</a> (computerworld.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=89149d4b-c63d-4bc5-b7ad-c875fac0ea16" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Lawyers should leave their laptops at home when traveling abroad" https://inpropriapersona.com/articles/lawyers-should-leave-their-laptops-at-home-when-traveling-abroad/ Wed, 09 Sep 2009 15:45:53 +0000 6ff59dcb826271e1868cf0da46543e5c <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:MacBook_Pro.jpg"><img title="The MacBook Pro (15.4&quot; widescreen) was Ap..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/9/9a/MacBook_Pro.jpg/300px-MacBook_Pro.jpg" alt="The MacBook Pro (15.4&quot; widescreen) was Ap..." width="300" height="241" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/Image:MacBook_Pro.jpg">Wikipedia</a></dd> </dl> </div> </div> <p><a class="zem_slink" title="Jim Calloway" rel="blog" href="http://jimcalloway.typepad.com/">Jim Calloway</a> points out a troublesome issue for traveling attorneys:</p> <blockquote><p>The <a class="zem_slink" title="United States Department of Homeland Security" rel="geolocation" href="http://maps.google.com/maps?ll=38.9380555556,-76.9177777778&amp;spn=0.01,0.01&amp;q=38.9380555556,-76.9177777778%20%28United%20States%20Department%20of%20Homeland%20Security%29&amp;t=h">Department of Homeland Security</a> recently clarified its position to restate that if you cross the border, any of your digital information devices can be seized and searched without the government giving you any reason whatsoever. They did promise to try to return them in a more timely manner. This includes everything from a laptop to an iPod to a USB flash drive. (Wow, wonder how many flash drives are in the pockets of my laptop bag now?)</p> <p>via <a href="http://jimcalloway.typepad.com/lawpracticetips/2009/09/the-digital-lawyer-crosses-the-border.html">Jim Calloway&#8217;s Law Practice Tips Blog: The Digital Lawyer Crosses the Border</a>.</p></blockquote> <p>He goes on to provide the following advice to any lawyer who may cross the U.S. border with a laptop potentially full of confidential client files:</p> <blockquote><p>That laptop probably can no longer travel across the U.S.border with you. Whether top military grade <a class="zem_slink" title="Encryption" rel="wikipedia" href="http://en.wikipedia.org/wiki/Encryption">encryption</a> protects your information from the Department of Homeland security or just presents a professional challenge for them is for you to decide.</p> <p>via <a href="http://jimcalloway.typepad.com/lawpracticetips/2009/09/the-digital-lawyer-crosses-the-border.html">Jim Calloway&#8217;s Law Practice Tips Blog: The Digital Lawyer Crosses the Border</a>.</p></blockquote> <p>There has always been an exception to <a class="zem_slink" title="Search and seizure" rel="wikipedia" href="http://en.wikipedia.org/wiki/Search_and_seizure">search and seizure</a> law at border crossings. In theory, this is nothing new &#8212; attorneys traveling with confidential paper files could also have them searched. But the ease of carrying vast numbers of confidential documents in electronic form raises the bar on this.</p> <p>And, as Calloway also points out, encryption may or may not be sufficient to protect your data from the U.S. government. It might be better to limit what confidential data you have on your laptop at all &#8212; Calloway recommends &#8220;temporary&#8221; netbooks for the job instead of your regular notebook. I think that&#8217;s not a bad idea at all.</p> <p>But I still think you should encrypt any laptop with confidential data too.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.trishussey.com/2009/08/29/pcworld-dhs-clarifies-laptop-border-crossing-rules/">PCWorld: DHS Clarifies Laptop Border Crossing Rules</a> (trishussey.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.infoworld.com/d/security-central/aclu-files-lawsuit-border-laptop-searches-214%3Fsource%3Drss_infoworld_news&amp;a=7219314&amp;rid=08b194b0-05cb-4dad-bf75-0c2bc7692546&amp;e=84d69cfc60f919ba621724a571e22682">ACLU files lawsuit on border laptop searches</a> (infoworld.com)</li> <li class="zemanta-article-ul-li"><a href="http://yro.slashdot.org/story/09/08/28/1216200/Homeland-Security-Changes-Laptop-Search-Policy?from=rss">Homeland Security Changes Laptop Search Policy</a> (yro.slashdot.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none ; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=08b194b0-05cb-4dad-bf75-0c2bc7692546" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Is virtual lawyering the future?" https://inpropriapersona.com/articles/is-virtual-lawyering-the-future/ Wed, 02 Sep 2009 16:43:16 +0000 f25de391ffce457faca7d26179adcfd9 <p><a id="aptureLink_Z5xAr4LhBd" style="float: right; padding-top: 0px; padding-right: 6px; padding-bottom: 0px; padding-left: 6px; " href="http://www.flickr.com/photos/declanjewell/517966692/"><img class="alignright" style="border: 0px initial initial;" title="Laptop Keyboard" src="http://static.flickr.com/197/517966692_d5e100b039.jpg" alt="" width="210" height="158" /></a>An interesting paragraph from an article dealing with the idea of &#8220;Good Enough&#8221; &#8212; services or products that may not have all the &#8220;bells and whistles&#8221; of their more-expensive competitors, but do enough at the right price to be runaway successes:</p> <blockquote><p>It turns out to be a remarkably efficient way of offering what Granat calls legal transaction services &#8212; tasks that are document intensive. For everything from wills to adoptions to shareholder agreements, elawyering has numerous advantages. Its cheaper, for example; a no-fault divorce, Granat says, might run a fifth of what seeing an attorney would cost. It&#8217;s also faster &#8212; customers can access the tools anytime and never have to interrupt their day to meet with someone in a distant office. Simply put, elawyering makes certain legal services more accessible.There are trade-offs, of course. &#8220;The relationship has less richness than what youd get from sitting in a lawyers office,&#8221; Granat says. &#8220;And if you have an issue thats more complex, then you still need to see a lawyer face-to-face.&#8221; In other words, its a lower-fidelity experience.But for most simple legal interactions, elawyering is, well, Good Enough. It gets the job done, even if it doesn&#8217;t let you ask every question or address every contingency. And not surprisingly, it&#8217;s on the rise. &#8220;Elawyering will be mainstream in three years,&#8221; Granat says. &#8220;I predict that in five years, if you&#8217;re a small firm and don&#8217;t offer this kind of Web service, you&#8217;re not going to make it.&#8221;</p> <p>via <a href="http://www.wired.com/gadgets/miscellaneous/magazine/17-09/ff_goodenough?currentPage=4">The Good Enough Revolution: When Cheap and Simple Is Just Fine </a>.</p></blockquote> <p>I have yet to see an explosion of virtual legal practices by attorneys (although I have seen a few ads for outsourced legal research, generally to India), but I think paralegals are leading the charge in this area. (See, for example, <a href="http://www.paralegalassociates.org">Paralegal Associates</a>, based here in San Diego.)</p> <p>The biggest worry I think many might have with this &#8212; a worry that might prevent this approach from being &#8220;good enough&#8221; &#8212; is one of trust, particularly in billing issues. With standard hourly billing (at sky-high rates), working virtually with a remote attorney is, well, scary. (Of course, how much real interaction do you really have on an hourly basis with a &#8220;regular&#8221; attorney?)</p> <p>In the attorney space, there is an increased focus on alternatives to hourly billing, such as fixed-fee services for routine legal matters (wills, for example). This ties neatly in with virtual legal services, where in-person meetings are less necessary, and flat fees make good sense.</p> <p>The other area that might make sense in this regard is virtual research: providing remote legal research to other attorneys, who can save time and money. I think this could be a real growth area for virtual legal services, and it keeps clients insulated from potential problems with quality, since a &#8220;regular&#8221; attorney still buffers any advice and so on.</p> <p>Combine legal research with <a class="zem_slink" title="Paralegal" rel="wikipedia" href="http://en.wikipedia.org/wiki/Paralegal">paralegal</a> services and perhaps tech support, and you have a winner, I think.</p> "Court transcripts and copyright awards" https://inpropriapersona.com/articles/court-transcripts-and-copyright-awards/ Sat, 29 Aug 2009 17:49:24 +0000 30d2c6c566b0949a28bc35d7942de5c9 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 170px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/23341397@N00/3406587471"><img title="a court reporter transcribes John's remarks" src="http://farm4.static.flickr.com/3404/3406587471_2f2a503934_m.jpg" alt="a court reporter transcribes John's remarks" width="160" height="240" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/23341397@N00/3406587471">cindiann</a> via Flickr</dd> </dl> </div> </div> <p>Ah, the challenges of equating production with <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright</a> (a very <a class="zem_slink" title="John Locke" rel="wikipedia" href="http://en.wikipedia.org/wiki/John_Locke">Lockean</a> concept, incidentally):</p> <blockquote><p>The problem? The city and the <a class="zem_slink" title="Court reporter" rel="wikipedia" href="http://en.wikipedia.org/wiki/Court_reporter">court reporter</a> who recorded the transcripts would have charged a much higher fee for a copy of the transcripts, and felt that the lawyer&#8217;s use of the law to gain access was somehow unfair. The court then ordered the lawyer to pay the court reporter over $4,000 to make up the &#8220;difference.&#8221; The lawyer, however, appealed, and the appeals court has thrown out the lower court ruling, saying that forcing the lawyer to pay the higher fee would mean that the court reporter effectively was given a copyright to the transcripts</p> <p>via <a href="http://techdirt.com/index.php">Techdirt.</a></p></blockquote> <p>It may not be &#8220;fair&#8221; to the court reporter that his or her work product should be available for less than they wish to sell it for &#8212; but the point of copyright and IP is about balancing public and private interests (and in promoting progress, in Constitutional terms), not about awarding ownership to producers. The court reporter was already paid for their effort and work, after all. The public interest then is best served by not awarding future <a class="zem_slink" title="Monopoly" rel="wikipedia" href="http://en.wikipedia.org/wiki/Monopoly">monopoly</a> ownership to them. Which is, I expect, pretty much what the appeals court decided.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3d81921d-596f-4fb0-b95f-bbcd2775d66d" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Google Books adds open-standard downloads" https://inpropriapersona.com/articles/google-books-adds-open-standard-downloads/ Thu, 27 Aug 2009 15:56:50 +0000 fbef25f69d4f55bdaaf495711756254b <p><span style="background-color: #ffffff;"><a id="aptureLink_DWp8ytVfEO" style="padding-top: 0px; padding-right: 6px; padding-bottom: 0px; padding-left: 6px; display: inline !important;" href="http://www.flickr.com/photos/acebal/2962255874/"><img class="alignright" style="border: 0px initial initial;" title="Uso de Google Books" src="http://static.flickr.com/3057/2962255874_5bb6c43510.jpg" alt="" width="50%" height="50%" /></a></span>For anyone using any kind of electronic reader &#8212; including a regular computer &#8212; this addition to Google Books may well prove quite useful:</p> <blockquote><p>I&#8217;m excited to announce that starting today, Google Books will offer free downloads of these and more than one million more public domain books in an additional format, EPUB. By adding support for EPUB downloads, we&#8217;re hoping to make these books more accessible by helping people around the world to find and read them in more places. More people are turning to new reading devices to access digital books, and many such phones, netbooks, and e-ink readers have smaller screens that don&#8217;t readily render image-based PDF versions of the books we&#8217;ve scanned. EPUB is a lightweight text-based digital book format that allows the text to automatically conform (or &#8220;reflow&#8221;) to these smaller screens. And because EPUB is a free, open standard supported by a growing ecosystem of digital reading devices, works you download from Google Books as EPUBs won&#8217;t be tied to or locked into a particular device.</p> <p>via <a href="http://booksearch.blogspot.com/2009/08/download-over-million-public-domain.html">Inside Google Books: Download Over a Million Public Domain Books from Google Books in the Open EPUB Format</a>.</p></blockquote> <p>This kind of access shows some of the potential of the public domain to allow for innovation and reuse. Thank Google &#8212; and Google advertisers, of course &#8212; for making it free. (They could legally sell public-domain works &#8212; there is no legal requirement that such access be free and open.)</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/">Does Copyright Foster or Hinder Innovation?</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/08/what-does-it-mean-to-be-in-the-public-domain-thoughts-about-the-ap-licensing-scheme/">What does it mean to be in the public domain? Thoughts about the AP licensing scheme.</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.readwriteweb.com/archives/google_opens_up_its_epub_archive_download_1_million_books_for_free.php">Google Opens Up Its EPUB Archive: Download 1 Million Books for Free</a> (readwriteweb.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3896be4e-d860-47b0-ab32-5ff852e4279c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "What’s the proper basis for copyright law?" https://inpropriapersona.com/articles/whats-the-proper-basis-for-copyright-law/ Wed, 26 Aug 2009 15:00:31 +0000 74d8eedae25c1de6ccf10520ef8b1d0e <p>Sometimes I feel that I spend an inordinate amount of time attacking copyright, as if I wished to eliminate it. I do not. But I do feel the balance is off. But how should we find the proper balance?</p> <blockquote><p>If the real purpose of copyright law is to &#8220;promote the progress,&#8221; then why not make sure it&#8217;s doing so? In other words, why not have actual evidence-based copyright law? There&#8217;s a lot of historical evidence that can be looked at, and different ideas around copyright law can be empirically tested. If it doesn&#8217;t promote the progress, get rid of it. If it does, then shouldn&#8217;t that make almost everyone better off?</p> <p>via <a href="http://techdirt.com/articles/20090820/0327475945.shtml">Could Evidence-Based Copyright Law Ever Be Put In Place? | Techdirt</a>.</p></blockquote> <p>Of course, <em>how </em>to collect, measure, and evaluate this evidence is not simple. Law &amp; Economics provides one powerful path, and tends to support changing current copyright law. Even if evidence is controversial, at least it gives us a shared foundation to discuss appropriate copyright approaches. So why is it so hard to find studies that provide such actual evidence, as opposed to supposition and imagination?</p> "The case of the disappearing case law" https://inpropriapersona.com/articles/the-case-of-the-disappearing-case-law/ Fri, 21 Aug 2009 16:00:59 +0000 073ae8c596bfcde6589402cc7ac4b5f1 <p><a href="http://www.flickr.com/photos/gorbould/3562161996/"><img class="alignright" title="&quot;Ah, just Google it&quot; by Flickr user gorbould, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license " src="http://farm4.static.flickr.com/3591/3562161996_65fda9445a_m.jpg" alt="" width="240" height="160" /></a>Case law &#8212; the record of judicial opinions that all lawyers rely on &#8212; increasingly lives in the &#8220;cloud.&#8221;</p> <p>The cloud consists of data and services that live on someone else&#8217;s servers. Although the term itself is new(ish), the basic idea is embodied by traditional legal research services like LexisNexis and Westlaw &#8212; data lives on someone else&#8217;s servers, not your own. Thus, someone else controls the data, not you. And someone else can delete or modify the data, and you&#8217;d never know&#8230;</p> <blockquote><p>It&#8217;s one thing to have to contend with Supreme Courts, like California, that have the power to &#8220;depublish&#8221; an opinion that helps your case and making it worthless as far as precedent is concerned. But to my knowledge, those cases are still on the books, and binding on the parties to the litigation that created the opinion. It&#8217;s an entirely different problem when a court can ask a publisher to take down an opinion previously published, and the publisher does it. In fact, the publisher has apparently been doing it for years. Maybe you knew about it, but I didn&#8217;t.</p> <p>via <a href="http://www.jasnwilsn.com/?p=415">Dear Publisher, Please Stop Deleting Case Law | Jason Wilson | Law Publishers</a>.</p></blockquote> <p>This is the sort of thing that has always given librarians heart attacks &#8212; to the extent that one librarian I knew years ago attempted to print out every Web site she ever accessed and stored them in file cabinets. A bit extreme? Yes, but the point was that she could control it once it was in print: the data couldn&#8217;t disappear, change, etc.</p> <p>I don&#8217;t have the solution to this conundrum &#8212; cloud services make too much sense to fight &#8212; but the downsides are expensive, too. What to do, what to do?</p> "Should the government need a warrant to access your Google Books history?" https://inpropriapersona.com/articles/should-the-government-need-a-warrant-to-access-your-google-books-history/ Wed, 19 Aug 2009 16:00:37 +0000 90b97d5d1e2f4f89393c800413ed0d8a <p><a href="http://www.flickr.com/photos/nypl/3109282915/"><img class="alignright" title="Dusting books" src="http://farm4.static.flickr.com/3270/3109282915_af303fcfaa_m.jpg" alt="" width="240" height="226" /></a>Should accessing content via the <a class="zem_slink" title="Google" rel="homepage" href="http://google.com">Google</a> Books service provide the same protections as one would receive when relying on a bookstore? The <a class="zem_slink" title="Electronic Frontier Foundation" rel="homepage" href="http://www.eff.org/">Electronic Frontier Foundation</a> (EFF) and the <a class="zem_slink" title="American Civil Liberties Union" rel="wikipedia" href="http://en.wikipedia.org/wiki/American_Civil_Liberties_Union">ACLU</a> say, &#8220;Yes&#8221;:</p> <blockquote><p>The central question in the privacy debate that EFF and our partners at the ACLU of Northern California and the Samuelson Law, Technology &amp; Public Policy Clinic at UC Berkeley have been having with Google about <a class="zem_slink" title="Google Book Search" rel="homepage" href="http://books.google.com/">Google Book Search</a> is whether this exciting new digital library/bookstore is going to maintain the strong protections for reader privacy that traditional libraries and bookstores have fought for and largely won.</p> <p>via <a href="http://www.eff.org/deeplinks/2009/08/warrants-required-big-disagreement-google-book-search">Warrants Required: EFF and Google&#8217;s Big Disagreement about Google Book Search | Electronic Frontier Foundation</a>.</p></blockquote> <p>I think I can safely say that I am in agreement with the ACLU and EFF on this one. Warrants, requiring judicial approval, are an important safeguard, although not perfect. They are routine for most investigations of physical locations, and, I think, ought to be so for virtual ones as well.</p> <p>Of course, this prevents large-scale &#8220;data mining&#8221; activities by governments, who could conceivable flag suspicious activity for future investigation &#8212; but that, I think, is how it should be.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/08/12/lethem-and-eff-on-wh.html">Lethem and EFF on why Google Book Search needs privacy guarantees</a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-1023_3-10294519-93.html?part=rss&amp;subj=news">Legal advocates ask for privacy protections in Google Books</a> (news.cnet.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/07/google-responds-to-publishers/">Google responds to publishers</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ba29347c-067d-47d5-887a-077bc856efde" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "What modern copyright law means to our culture" https://inpropriapersona.com/articles/what-modern-copyright-law-means-to-our-culture/ Tue, 18 Aug 2009 03:19:51 +0000 63f4de1f0dc7950ee205c46928427c18 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/Image:Steamboat-willie.jpg"><img title="Mickey Mouse in Steamboat Willie (1928)" src="http://upload.wikimedia.org/wikipedia/en/thumb/4/4e/Steamboat-willie.jpg/300px-Steamboat-willie.jpg" alt="Mickey Mouse in Steamboat Willie (1928)" width="300" height="215" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/Image:Steamboat-willie.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>What does it mean to our culture that we have imposed the most draconian restrictions on the reuse of intellectual creations than at any other time?</p> <blockquote><p>1. We are the first generation to deny our own culture to ourselves.</p> <p>2. No work created during your lifetime will, without conscious action by its creator, become available for you to build upon.</p> <p>via <a href="http://www.thepublicdomain.org/2009/08/12/the-public-domain-in-2-twitter-sized-bits/">The Public Domain in 2 Twitter sized bits.. | The Public Domain</a>.</p></blockquote> <p><a class="zem_slink" title="Mike Masnick" rel="wikipedia" href="http://en.wikipedia.org/wiki/Mike_Masnick">Mike Masnick</a> at <a class="zem_slink" title="TechDirt" rel="homepage" href="http://www.techdirt.com">Techdirt</a> adds to this:</p> <blockquote><p>For people who don&#8217;t recognize the importance of the <a class="zem_slink" title="Public domain" rel="wikipedia" href="http://en.wikipedia.org/wiki/Public_domain">public domain</a> and the nature of creativity, perhaps this seems like no big deal. But if you look back through history, you realize what an incredibly big deal it is &#8212; and how immensely <em>stifling</em> this is on our culture. And then you realize this is all done under a law whose <em>sole purpose</em> is to &#8220;promote the progress&#8221; and you begin to wonder how this happened.</p> <p>via Copyright Length And The Life Of <a class="zem_slink" title="Mickey Mouse" rel="wikipedia" href="http://en.wikipedia.org/wiki/Mickey_Mouse">Mickey Mouse</a> | Techdirt.</p></blockquote> <p>The changes and restrictions of <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright</a> are unprecedented. Yet our technological progress &#8212; and cultural output, at least &#8212; has grown exponentially over time, even as our <a class="zem_slink" title="Intellectual property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_property">IP</a> restrictions have increased. Is there a correlation or connection?</p> <p>I believe over-restrictive copyright hampers innovation, but I also believe it&#8217;s not a simple equation. It&#8217;s about balance, and I&#8217;m looking for evidence to find the &#8220;sweet spot&#8221; that balances the rights of creators with the utility to end-users.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/07/current-themes-evident-in-copyright-arguments-from-100-years-ago/">Current themes evident in copyright arguments from 100 years ago</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090811/0123105835.shtml">Copyright Length And The Life Of Mickey Mouse</a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/">Does Copyright Foster or Hinder Innovation?</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/08/what-does-it-mean-to-be-in-the-public-domain-thoughts-about-the-ap-licensing-scheme/">What does it mean to be in the public domain? Thoughts about the AP licensing scheme.</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=927164b5-1289-44cd-8868-1173dc3436da" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "What does it mean to be in the public domain? Thoughts about the AP licensing scheme." https://inpropriapersona.com/articles/what-does-it-mean-to-be-in-the-public-domain-thoughts-about-the-ap-licensing-scheme/ Tue, 04 Aug 2009 18:15:54 +0000 0ed09767f9bceebae8f7b25c3f58bddc <p><a href="http://www.flickr.com/photos/nypl/3109788657/"><img class="alignright" title="Newsstand, 32nd Street and Third Avenue, Manhattan." src="http://farm4.static.flickr.com/3106/3109788657_f8acd73be7_m.jpg" alt="" width="240" height="189" /></a>The AP has begin trying to license content through a <a href="http://info.icopyright.com/">payment scheme</a>. Some of the content &#8212; as <a href="http://laboratorium.net/archive/2009/08/03/the_ap_will_sell_you_a_license_to_words_it_doesnt">recently demonstrated</a> by James Grimmelmann &#8220;purchasing&#8221; a Thomas Jefferson quote &#8212; is in the public domain. Does the AP have the right to sell/license this public-domain content? What does it mean to be in the public domain?</p> <p>Randy Picker responds by saying:</p> <blockquote><p>We should review how the public domain works. The public domain is sold every day. Every time you buy a copy of Hamlet you are paying for a public domain work. I do H.G. Wells’s The War of the Worlds in my copyright class on this starting with Project Gutenberg &#8212; free, of course &#8212; and then heading to Barnes &amp; Noble and Amazon, where the prices range from $2.50 to $13.95 see <a href="http://picker.uchicago.edu/Copyright/C08Post.ppt">slides</a> 3 to 13. That is precisely the nature of the public domain: anyone can use it for whatever they want, including selling it. The AP is fully within its rights to sell public domain content just as Amazon does every day.</p> <p>via <a href="http://uchicagolaw.typepad.com/faculty/2009/08/the-associated-press-selling-the-public-domain.html">The University of Chicago Law School Faculty Blog: The Associated Press: Selling the Public Domain?</a></p></blockquote> <p>To restate: there is absolutely nothing legally wrong with the AP licensing or selling public-domain content. To paraphrase concepts from the open source world, public-domain content is free (as in speech, &#8220;libre&#8221;) not free as in beer.</p> <p>As Picker puts it, &#8220;Public domain content is outside the copyright system. Again that is its nature.&#8221;</p> <p>You have no right to access of public-domain materials (perhaps unfortunately). You have no right to get them without paying. Instead, such materials are free for anyone to <em>use</em> in any way they wish. The AP can sell the material. You can sell the content. Anyone can do with it what they wish.</p> <p>(A side note: a license by the AP to such content may be invalid, in the sense that once you have it, you can do with it as you wish &#8212; although potentially you may still breach a contract you have with the licensor. Picker, for example, writes, &#8220;Ordinary rules regarding contracts and licenses should apply to circumstances under which someone is given access to public domain content.&#8221; I can envision counterarguments. In other words: it&#8217;s complicated. Thus the existence of lawyers.)</p> <p>Bizarre? Unfair? Strange? Perhaps. But consider that the protections of copyright are a modern addition to the world. Pre-18th century (to grossly simplify things), if you sold your manuscript, you sold the &#8220;copyright&#8221; as well. All intellectual creations were, in a sense, in the public domain (although the concept didn&#8217;t quite exist &#8212; without modern copyright, there is no concept of &#8220;public domain&#8221; either &#8212; there is simply one state, not too).</p> <p>Modern copyright changed this, and arguably encouraged creation &#8212; but it also locks up works in various ways as well. Thus the need for a balance, I believe, between the protections of intellectual property (which is not quite like ordinary property, which is why you only &#8220;infringe&#8221; IP) and the dizzying freedoms of the public domain.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/08/02/associated-press-wil-1.html">Associated Press will sell you a license to quote the public domain</a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090803/0344305756.shtml">AP Will Sell You A License To Words It Has No Right To Sell</a> (techdirt.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=347221e2-48c9-4671-9c13-1a8ab7627817" alt="" /></div> "Different social networks for different purposes" https://inpropriapersona.com/articles/different-social-networks-for-different-purposes/ Sat, 01 Aug 2009 21:39:44 +0000 59513ebf39d241ca786e16e1241abd12 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 245px" class="wp-caption alignright"><a href="http://www.crunchbase.com/company/twitter"><img title="Image representing Twitter as depicted in Crun..." src="http://www.crunchbase.com/assets/images/resized/0005/4561/54561v2-max-250x250.png" alt="Image representing Twitter as depicted in Crun..." width="245" height="250" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> </div> <p>Soren Gordhamer at <a class="zem_slink" title="Mashable" href="http://mashable.com" rel="homepage">Mashable</a> has a good reminder of the differing purposes and uses of <a class="zem_slink" title="Social network" href="http://en.wikipedia.org/wiki/Social_network" rel="wikipedia">social networks</a> &#8212; in this case, <a class="zem_slink" title="Facebook" href="http://facebook.com" rel="homepage">Facebook</a> vs. <a class="zem_slink" title="Twitter" href="http://twitter.com" rel="homepage">Twitter</a>:</p> <blockquote><p>There is growing body of people who actively use more than one social network, and do so with quite different purposes. Though on the surface many social networks seem similar, to use them skillfully it helps to better understand the different roles they can play in one’s online activity.</p> <p>via <a href="http://mashable.com/2009/08/01/facebook-vs-twitter/">When Do You Use Twitter Versus Facebook?</a></p></blockquote> <p>A quick summary:</p> <ul> <li>Twitter for connecting with someone you don&#8217;t know.</li> <li>Twitter for breaking news.</li> <li>Discovery and new learning on Twitter.</li> <li>Facebook for local news and events.</li> <li>Facebook for connecting with someone you know.</li> <li>Looking for help on an issue? Soren prefers Facebook.</li> </ul> <p>The Mashable tips are useful, although leave off other social networks, particularly <a class="zem_slink" title="LinkedIn" href="http://www.linkedin.com" rel="homepage">Linkedin</a>. Nonetheless, they are useful tips. Here are my additions:</p> <ul> <li>Linkedin for professional networking, as long as I&#8217;ve interacted with the person previously.</li> <li>Facebook for personal networking &#8212; and professional contacts I would consider closer than acquantances</li> <li>Twitter for broad-based networking with those I may or may not have met, but want to keep up with</li> <li><a class="zem_slink" title="FriendFeed" href="http://friendfeed.com" rel="homepage">Friendfeed</a> as a supplement to Twitter</li> </ul> <p>The more you mix professional and personal contacts, the more careful you need to be with your posts. So while I do add professional contacts to Facebook on occasion, I always remember they may see my status updates, and post accordingly &#8212; but remembering, too, that Facebook is personal in tone, while Linkedin is professional. (Twitter is somewhere in the middle). And I always use Facebook groups to segregate types of connections.</p> <p>Finally, I always try to remember that, regardless of segregation, any of my online posts could be read by anyone. So I make sure to moderate my postings, just in case.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=af8f99bf-b713-4125-b194-a76d7e07efe8" alt="" /></div> "Can Amazon’s Kindle disrupt the current textbook market?" https://inpropriapersona.com/articles/can-amazons-kindle-disrupte-the-current-textbook-market/ Fri, 31 Jul 2009 15:00:40 +0000 9f8b0ea52b7b4c2d70399c595a9d4a04 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://www.daylife.com/image/0c6Uf6K6Ye4Pz?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=0c6Uf6K6Ye4Pz&amp;utm_campaign=z1"><img title="NEW YORK - FEBRUARY 09: A reporter holds the ..." src="http://cache.daylife.com/imageserve/0c6Uf6K6Ye4Pz/150x100.jpg" alt="NEW YORK - FEBRUARY 09: A reporter holds the ..." width="150" height="100" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com">Daylife</a></dd> </dl> </div> </div> <p>BizOp News asks the question:</p> <blockquote><p>Is the <a class="zem_slink" title="Amazon Kindle" href="http://www.amazon.com" rel="homepage">Kindle</a> DX: <a class="zem_slink" title="Amazon" href="http://amazon.com/" rel="homepage">Amazon</a>&#8216;s 9.7&#8243; Wireless Reading Device (Latest Generation) a disruptive device for the textbook market?</p> <p>via <a href="http://www.bizop.ca/blog2/due-diligence/can-kindle-replace-text-books.html">The BizOp News | Due Diligence : Can Kindle Replace Text Books?</a></p></blockquote> <p>His main argument is that &#8220;Kindle threatens the established textbook market, because textbooks can be treated as software, and rental items. You only want the text for one course, you rent it.&#8221;</p> <p>He believes, along with others, that Amazon will likely act to push legal textbook authors to publish ebooks &#8211; but they will be accompanied with licensing and <a class="zem_slink" title="Digital rights management" href="http://en.wikipedia.org/wiki/Digital_rights_management" rel="wikipedia">DRM</a> that will ensure their limited distribution and use and, presumably, undermine the used textbook market as well.</p> <p>I believe the Kindle &#8211; and perhaps other devices like it &#8211; may indeed revolutionize the market. I am not convinced that all textbooks are amenable to an electronic model in terms of ease of use, but that may not stop the attempt by Amazon to push it.</p> <p>To be honest, I suspect the entrenched nature of law and law schools will prevent Amazon&#8217;s complete success in any rapid fashion &#8211; I suspect a complete changeover to electronic books will simply run into too much resistance.</p> <p>I also believe that &#8220;renting&#8221; textbooks stands a decent chance of generating a backlash against the current ebook licensing approach, as students (never ones to enjoy restrictions, especially ones that cost them money) discover they can&#8217;t pass on their textbooks to others by selling or giving them away.</p> <p>Still, Amazon still has a chance to disrupt the market without such a backlash &#8211; if the purchase price paid by students for books justifies the more limited rights they will enjoy. If Amazon can pull it off, everyone will benefit &#8211; if they give in to publishers and keep prices artificially high &#8211; we will see a backlash and disruption of a different sort.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.professorbainbridge.com/professorbainbridgecom/2009/07/the-kindle-drm-kerfuffle-a-case-book-authors-perspective.html">The Kindle DRM Kerfuffle: A Case Book Author&#8217;s Perspective</a> (professorbainbridge.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/amazons-kindle-and-digital-rights-management/">Amazon&#8217;s Kindle and digital rights management</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/electronic-texts-and-rent-seeking.html">Electronic texts and rent-seeking publishers</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b9d7c85e-d372-4109-8eb0-99c114ac3698" alt="" /></div> "Applying DRM to the news" https://inpropriapersona.com/articles/applying-drm-to-the-news/ Sat, 25 Jul 2009 15:00:35 +0000 9a8e420a414472c941aec94583081bb7 <p>The AP wants to apply DRM to the news. It won&#8217;t work.</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/15802578@N00/2934130622"><img title="A Teletype Smile" src="http://farm4.static.flickr.com/3213/2934130622_58682f5920_m.jpg" alt="A Teletype Smile" width="240" height="159" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/15802578@N00/2934130622">wwward0</a> via Flickr</dd> </dl> </div> </div> <p>I first heard about this on <a class="zem_slink" title="National Public Radio" href="http://www.npr.org" rel="homepage">NPR</a>, and it boggled my mind as to how the AP could ever think this would work. Techdirt, of course, has a nice write-up of the issue and the problems:</p> <blockquote><p><a class="zem_slink" title="Digital rights management" href="http://en.wikipedia.org/wiki/Digital_rights_management" rel="wikipedia">DRM</a> has failed in almost every instance it&#8217;s been tried. Not only does it fail to actually prevent copying, it tends to piss off legitimate users and limit value rather than enhance it. And yet&#8230; people keep trying. But, honestly, I can&#8217;t think of anything as pointless as the latest move from the <a class="zem_slink" title="Associated Press" href="http://www.ap.org" rel="homepage">Associated Press</a> which appears to be an attempt to DRM the news. That&#8217;s not what they call it, but that&#8217;s what it sounds like</p> <p>via <a href="http://www.techdirt.com/articles/20090723/1858235640.shtml">Associated Press Tries To DRM The News | Techdirt</a>.</p></blockquote> <p>I get the frustration on the AP&#8217;s part. The world is changing, and they haven&#8217;t figured out to prevent that. They can try for legal changes, try DRM, or adapt. Adapting is hardest, but the only way to succeed long term.</p> <p>Honestly, legal changes are the next best thing in terms of buying time to adapt. DRM-like approaches tend to frustrate and annoy even legitimate users. If your product is valuable, someone will go around your limitations. If they don&#8217;t &#8211; you&#8217;re dead, because the market just decided your product isn&#8217;t worth it.</p> <p>How to adapt, though, is not clear.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=8817775f-1b18-4757-81e5-5ffd53a8edae" alt="" /></div> "Does selling access to court-filed attorney briefs violate copyright law?" https://inpropriapersona.com/articles/does-selling-access-to-court-filed-attorney-briefs-violate-copyright-law/ Fri, 24 Jul 2009 17:04:34 +0000 5dbbb2f1fdc24b202759d528454e5153 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:Supremecourtofcaliforniamaincourthouse.jpg"><img title="The Earl Warren Building and Courthouse at Civ..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/3/30/Supremecourtofcaliforniamaincourthouse.jpg/300px-Supremecourtofcaliforniamaincourthouse.jpg" alt="The Earl Warren Building and Courthouse at Civ..." width="300" height="225" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/Image:Supremecourtofcaliforniamaincourthouse.jpg">Wikipedia</a></dd> </dl> </div> </div> <p><a href="http://legalresearchplus.com/2009/07/23/lexisnexis-and-westlaw-violating-copyright/#">Legal Research Plus</a> brought this to my attention, originally from the <a href="http://www.dailyjournal.com/">Daily Journal</a>:</p> <blockquote><p>. . . Several months ago, . . .  Irvine attorney [Ed Connor] learned the California Supreme Court had given his 143-page brief to the legal information service LexisNexis, which was making it available online for a fee. . . .</p> <p>via <a href="http://legalresearchplus.com/2009/07/23/lexisnexis-and-westlaw-violating-copyright/#">LexisNexis and Westlaw violating copyright? « Legal Research Plus</a>.</p></blockquote> <p>This idea &#8212; that the courts are turning over attorney work product to for-fee services, which then resell them (or merely make them available?) to customers &#8212; is an intriguing one. Do briefs filed with the court become public domain? Or do the original author-attorneys retain copyright? Even if the writer (or their employer in some cases, since briefs are likely works-for-hire) retains copyright, does fair use apply to Lexis/Westlaw&#8217;s actions? As I said, an interesting idea.</p> <p>Personally, from a public-policy perspective, I would be inclined to favor allowing LexisNexis, Westlaw, and anyone else to provide access to court-filed attorney briefs. I am bothered a bit about the resale factor &#8212; but only because there does not seem to be a free (as in without cost) option for accessing the briefs. I do not believe the public benefits from applying a copyright approach that denies access to the briefs. We are all better off if we can read them.</p> <p>But like other situations in which I advocate &#8220;open access,&#8221; there should be more public access than simply LexisNexis and Westlaw&#8217;s extremely expensive service.</p> <p>I&#8217;ll be interested to see if this issue goes anywhere in California, or if it just disappears.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/are-westlaw-and-lexisnexis-simply.html"> Are Westlaw and LexisNexis simply selling &#8220;free&#8221; information? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/10-alternative-legal-research-sites.html"> 10 Alternative Legal Research Sites </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=896e44de-07c4-4907-b491-95404d3e2eb3" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Amazon apologizes for Kindle fiasco" https://inpropriapersona.com/articles/amazon-apologizes-for-kindle-fiasco/ Fri, 24 Jul 2009 15:00:36 +0000 8a7ffb07188527b6d08c7b99e870c881 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 210px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/amazon-ec2"><img title="Image representing Amazon EC2 as depicted in C..." src="http://www.crunchbase.com/assets/images/resized/0000/3898/3898v1-max-450x450.jpg" alt="Image representing Amazon EC2 as depicted in C..." width="200" height="89" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p><a class="zem_slink" title="Jeff Bezos" rel="crunchbase" href="http://www.crunchbase.com/person/jeff-bezos">Jeff Bezos</a> of <a class="zem_slink" title="Amazon" rel="homepage" href="http://amazon.com/">Amazon.com</a> apologizes for the <em><a title="Amazon's Kindle DRM strikes again" href="https://inpropriapersona.com/2009/07/amazons-kindle-drm-strikes-again/">1984</a></em><a title="Amazon's Kindle DRM strikes again" href="https://inpropriapersona.com/2009/07/amazons-kindle-drm-strikes-again/"> Kindle fiasco</a>:</p> <blockquote><p>This is an apology for the way we previously handled illegally sold copies of 1984 and other novels on Kindle. Our &#8220;solution&#8221; to the problem was stupid, thoughtless, and painfully out of line with our principles. It is wholly self-inflicted, and we deserve the criticism we&#8217;ve received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission.</p> <p>With deep apology to our customers,</p> <p>Jeff Bezos</p> <p>Founder &amp; CEO</p> <p>Amazon.com</p> <p>via <a href="http://www.amazon.com/tag/kindle/forum/ref=cm_cd_ef_tft_tp?_encoding=UTF8&amp;cdForum=Fx1D7SY3BVSESG&amp;cdThread=Tx1FXQPSF67X1IU&amp;displayType=tagsDetail">An Apology from Amazon &#8211; kindle Discussion Forum</a>.</p></blockquote> <p>I appreciate the apology. It&#8217;s good customer service. I&#8217;m not sure it makes me more comfortable with the law in this area, but it does improve the likelihood that I might someday purchase a Kindle myself.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=0cd2af60-12cc-4288-a5f2-d32ade551ffd" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Should there be no copyright for academic publications?" https://inpropriapersona.com/articles/should-there-be-no-copyright-for-academic-publications/ Thu, 23 Jul 2009 18:00:02 +0000 d1b2747295e71ed63b9fff98e2883398 <p><a href="http://www.flickr.com/photos/nypl/3110117728/"><img class="alignright" title="Stacks at the New York Public Library" src="http://farm4.static.flickr.com/3259/3110117728_a1b0f1a932_m.jpg" alt="" width="205" height="240" /></a>Worth reading and considering is a <a href="http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/Copyright%207-17HLS-2009.pdf">new draft article</a> by Professor Steven Shavell (author of the excellent law and economics text <a class="zem_slink" title="Foundations of Economic Analysis of Law" href="http://www.amazon.com/Foundations-Economic-Analysis-Steven-Shavell/dp/0674011554%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0674011554" rel="amazon">Foundations of Economic Analysis of Law</a>) that proposes abolishing copyright on academic works:</p> <blockquote><p>The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) &#8212; suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the &#8216;open access&#8217; movement that effectively seeks this objective without modification of the law faces fundamental difficulties.</p> <p>via <a href="http://cyber.law.harvard.edu/node/5505">&#8220;Should Copyright Of Academic Works Be Abolished?&#8221; | Berkman Center</a>.</p></blockquote> <p>An interesting proposal that I look forward to reading in more detail. My gut feeling is that, as an academic author, I would be comfortable with this, provided attribution was mandated (as with <a class="zem_slink" title="Creative Commons" href="http://creativecommons.org/" rel="homepage">Creative Commons</a>, which is really based on copyright). After all, while I do not expect to profit directly from any academic work I produce, I need the attribution to me to stay in order to survive in an academic profession that rewards publications and writings. If I lose the attribution, I lose that.</p> <p>As I said, I look forward to reading Professor Shavell&#8217;s draft article in more depth.</p> "Google responds to publishers" https://inpropriapersona.com/articles/google-responds-to-publishers/ Wed, 22 Jul 2009 15:00:19 +0000 bffd432fee0326383e22d2bcced12044 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://www.daylife.com/image/06f4ght7Axbis?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=06f4ght7Axbis&amp;utm_campaign=z1"><img title="LONDON - APRIL 13: (FILE PHOTO) In this photo..." src="http://cache.daylife.com/imageserve/06f4ght7Axbis/150x92.jpg" alt="LONDON - APRIL 13: (FILE PHOTO) In this photo..." width="150" height="92" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com">Daylife</a></dd> </dl> </div> </div> <p><a href="http://www.internetevolution.com/author.asp?section_id=697&amp;doc_id=179357">According to Rob Salkowitz</a> of Internet Evolution, in the so-called <a href="http://www.epceurope.org/presscentre/archive/International_publishers_demand_new_intellectual_property_rights.shtml">Hamburg Declaration issued July 9</a>, publishers argued that services like Google are &#8220;using the work of authors, publishers and broadcasters without paying for it&#8221;:</p> <blockquote><p>Numerous providers are using the work of authors, publishers and broadcasters without paying for it. Over the long term, this threatens the production of high-quality content and the existence of independent journalism. . . .</p> <p>Universal access to our services should be available, but going forward we no longer wish to be forced to give away property without having granted permission.</p> <p>We therefore welcome the growing resolve of federal and state governments all over the world to continue to support the protection of the rights of authors, publishers and broadcasters on the Internet.</p></blockquote> <p>Salkowitz points to <a href="http://googlepolicyeurope.blogspot.com/2009/07/working-with-news-publishers.html">Google&#8217;s simple response</a>:</p> <blockquote><p>&#8220;We agree,&#8221; wrote Cohen on Google’s European Public Policy Blog on July 15. “If a webmaster wants to stop us from crawling a specific page, he or she can do so by adding <code> '&lt;meta name="googlebot" content="noindex"&gt;'</code> to the page. In short, if you don&#8217;t want to show up in Google search results, it doesn&#8217;t require more than one or two lines of code.&#8221;</p></blockquote> <p>He points out that, basically, if newspapers want to go back to the &#8220;old way&#8221; for themselves, they can. No need to change the law to prevent Google from indexing their content. But of course, this isn&#8217;t really want publishers want.</p> <p>In truth, publishers get value from Google &#8211; value that is necessary for them to compete and market themselves today. So they need Google or services like them. This makes their attacks on Google a distraction from the real issues for them, which really involves a business model that can&#8217;t compete well in today&#8217;s marketplace.</p> <p>There are a number of choices, two of which seem most obvious: change the law or change the model. Unsurprisingly, publishers want to change the law.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.thewavingcat.com/2009/07/16/hamburg-declaration-google-embarrasses-whiny-euro-publishers/"> Hamburg Declaration: Google Embarrasses Whiny Euro Publishers </a> (thewavingcat.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/economists-abolish-copyright-patents-to.html">Economists: Abolish Copyright &amp; Patents to Save the Economy</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2815de5d-8dab-4c87-a901-516e08688d74" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Current themes evident in copyright arguments from 100 years ago" https://inpropriapersona.com/articles/current-themes-evident-in-copyright-arguments-from-100-years-ago/ Tue, 21 Jul 2009 18:00:58 +0000 5fb77beb16e250aae61cf4bb3a200c62 <p><a id="aptureLink_OMKm4BJHYp" style="padding: 0px 6px; float: right;" href="http://www.flickr.com/photos/playingwithpsp/2546732441/"><img style="border: 0px none;" title="Old Sheet Music Page" src="http://farm4.static.flickr.com/3164/2546732441_8169887b89-1.png" alt="" width="233.2876px" height="309.40000000000003px" /></a>From <a href="http://thepublicdomain.org">thepublicdomain.org</a> comes <a href="http://www.thepublicdomain.org/2009/07/17/were-we-smarter-100-years-ago/">this interesting and revealing series of excerpts</a> from the legislative history of the <a class="zem_slink" title="Copyright Act of 1909" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright_Act_of_1909">1909 Copyright Act</a>:</p> <blockquote><p>I have been rereading the legislative history of the 1909 Copyright Act.  I have come to the conclusion that 100 years ago we were smarter about copyright,  about disruptive technologies, about intellectual property, monopolies and network effects  than we are today. At least, the legislative hearings were much smarter.  The hearings I am looking at took place in 1906 &#8212; thanks to the wonder of Google books you can read them yourself, if you are really nerdy.</p> <p>via <a href="http://www.thepublicdomain.org/2009/07/17/were-we-smarter-100-years-ago/"> Were we smarter 100 years ago..? | The Public Domain</a>.</p></blockquote> <p>Themes from then and now certainly recurred, but there seemed to be a better balance among the business interests as to the pros and cons of various copyright restrictions. For example, here is an argument from the representatives of the recording and player piano industries that their technologies actually encourages the dissemination and sales of music &#8211; reminiscent of arguments by many today:</p> <p><img class="aligncenter" title="statement of Albert Walker, representative of the Auto-Music Perforating Company of New York" src="http://books.google.com/books?id=m7QvAAAAMAAJ&amp;pg=PA284&amp;img=1&amp;zoom=3&amp;hl=en&amp;sig=ACfU3U073LbqsBLwV0JVfWcxJMlE6XAvaw&amp;ci=70%2C433%2C861%2C580&amp;edge=0" alt="" width="495" height="334" /></p> <p>The whole of the article is worth reading, if only to remember that our current system was hardly inevitable, and that many pro-business arguments can be made for a different approach.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/judge-posner-expand-copyright-to-protect-newspapers/"> Judge Posner: Expand copyright to protect newspapers? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/economists-abolish-copyright-patents-to.html">Economists: Abolish Copyright &amp; Patents to Save the Economy</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=bc73e4e7-8710-43cb-a97e-713ccbd5f654" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Amazon’s Kindle DRM strikes again" https://inpropriapersona.com/articles/amazons-kindle-drm-strikes-again/ Fri, 17 Jul 2009 20:32:01 +0000 40de231aee8a5444c3ce0a81a54d6cf9 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 75px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Kindle_2_-_Front.jpg"><img class="zemanta-img-configured" title="The Amazon Kindle 2" src="http://upload.wikimedia.org/wikipedia/commons/thumb/d/d7/Kindle_2_-_Front.jpg/300px-Kindle_2_-_Front.jpg" alt="The Amazon Kindle 2" width="75" height="97" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Yet another example of the problems with <a class="zem_slink" title="Digital rights management" href="http://en.wikipedia.org/wiki/Digital_rights_management" rel="wikipedia">DRM</a> and the Kindle:</p> <blockquote><p>This morning, hundreds of <a class="zem_slink" title="Amazon Kindle" href="http://www.amazon.com" rel="homepage">Amazon Kindle</a> owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for—thought they owned.</p> <p>But no, apparently the publisher changed its mind about offering an electronic edition, and apparently Amazon, whose business lives and dies by publisher happiness, caved. It electronically deleted all books by this author from people’s Kindles and credited their accounts for the price.</p> <p>via <a href="http://pogue.blogs.nytimes.com/2009/07/17/some-e-books-are-more-equal-than-others/">Some E-Books Are More Equal Than Others &#8211; Pogue’s Posts Blog &#8211; NYTimes.com</a>.</p></blockquote> <p>This also clearly illustrates the problem from the consumer perspective of &#8220;licensing&#8221; what was previously sold. With physical books &#8211; or even electronic sales &#8211; the &#8220;first-sale&#8221; doctrine applies, and the seller cannot unilaterly reverse the transaction and take back the item (even if they credit the consumer for the price). Nor can the seller in a traditional sales transaction prevent resale, etc. &#8211; which Amazon also prohibits.</p> <p>Will consumers adjust to this new model, or will we rebel and insist on our traditional first-sale rights?</p> <p>This certainly discourages me from buying a Kindle &#8211; or, especially, from purchasing my Kindle books through Amazon. Better to get them via <a class="zem_slink" title="Project Gutenberg" href="http://www.gutenberg.org/wiki/Main_Page" rel="homepage">Project Gutenberg</a>, where they cannot be taken from me later on.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/07/17/amazon-zaps-purchase.html"> Amazon zaps purchased copies of Orwell&#8217;s 1984 and Animal Farm from Kindles </a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="http://www.slate.com/id/2222941/?from=rss"> The book industry is gonna get Napstered if it forces Amazon to raise e-book prices. </a> (slate.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/amazons-kindle-and-digital-rights-management/"> Amazon&#8217;s Kindle and digital rights management </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/copyright-as-antidote-to-drm.html"> Copyright as Antidote to DRM </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/electronic-texts-and-rent-seeking.html"> Electronic texts and rent-seeking publishers </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=72e5718d-72e9-4b7e-97d8-bb64598360e0" alt="" /></div> "New law journal launches that focuses on open source" https://inpropriapersona.com/articles/new-law-journal-launches-focusing-on-open-source/ Thu, 16 Jul 2009 18:00:14 +0000 24ab4ac002640350ab9466e8a9a5627d <p><a href="http://www.flickr.com/photos/jerine/2538000575/"><img class="alignright" title="Law journals by jerine" src="http://farm3.static.flickr.com/2261/2538000575_c9e94f9429_m.jpg" alt="" width="180" height="240" /></a>There&#8217;s a new law journal in town:</p> <blockquote><p>The  (IFOSS L. Rev.) is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes.</p> <p>via the <a href="http://www.ifosslr.org/ifosslr/index">International Free and Open Source Software Law Review</a>.</p></blockquote> <p>Cearta.ie adds some more details:</p> <blockquote><p>It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.</p> <p>via <a href="http://www.cearta.ie/2009/07/new-open-source-law-journal/">cearta.ie » New Open Source Law Journal</a>.</p></blockquote> <p>So what&#8217;s in the first edition? Here&#8217;s the (very interesting) <a href="http://www.ifosslr.org/ifosslr/issue/view/1/showToc">table of contents</a>:</p> <blockquote><p>Foreword and statement of purpose: an introduction to IFOSS L. Rev., Iain G Mitchell QC</p> <p><strong>Articles</strong></p> <ul> <li> The Fiduciary Licence Agreement: Appointing legal guardians for Free Software Projects, Ywein Van den Brande</li> <li> Collaborative Approach: Peer-to-Patent and the Open Source Movement, Christopher Wong, Jason Kreps</li> <li> Bad Facts Make Good Law: The Jacobsen Case and Open Source, Lawrence Rosen</li> <li> Introducing The Risk Grid, Shane Martin Coughlan, Andrew Katz</li> </ul> <p><strong>Case Law Reports</strong></p> <ul> <li> Jacobsen v Katzer and Kamind Associates – an English legal perspective, Mark Henley</li> </ul> <p><strong>Book reviews</strong></p> <ul> <li> &#8216;Open Source Technology and Policy&#8217; by Fadi P. Deek and James A.M. McHugh, Andrew Katz</li> </ul> <p><strong>Tech Watch</strong></p> <ul> <li> Tech Watch, Adriaan de Groot</li> </ul> <p><strong>Platform</strong></p> <ul> <li> Collaboration Among Counsel Celebrating the Formation of a Community of Lawyers for the Advancement of Understanding of Free and Open Source Licensing and Business Models, Karen Faulds Copenhaver</li> </ul> </blockquote> <p>This looks like a journal to watch going forward.</p> <p><strong>Related articles</strong></p> <ul> <li><a href="http://www.computerworlduk.com/community/blogs/index.cfm?entryid=2352&amp;blogid=14">International Free and Open Source Software Law Review Launched</a> (computerworlduk.com)</li> <li><a href="http://www.boingboing.net/2009/07/14/new-freeopen-source.html">New Free/Open Source Software law journal launches</a> (boingboing.net)</li> </ul> "Is online legal education a viable alternative to traditional schooling?" https://inpropriapersona.com/articles/is-online-legal-education-a-viable-alternative-to-traditional-schooling/ Wed, 15 Jul 2009 15:00:07 +0000 36fd966945d86d30f40aef29ee8fa3be <blockquote><p><a id="aptureLink_Y6zV4b6uWB" style="padding: 0px 6px; float: right;" href="http://www.flickr.com/photos/jessemichaelnix/1144152067/"><img class="alignright" style="border: 0px none;" title="Law School Textbooks" src="http://static.flickr.com/1234/1144152067_b2ae7827d1.jpg" alt="" width="276" height="207" /></a>Last month, Ross Mitchell made headlines when he became the first online law school graduate to be admitted to the Massachusetts bar.</p> <p>via <a href="http://web.archive.org/web/20090906084205/http://abovethelaw.com:80/2009/07/distance_learning_schools_and_accreditation.php">Could There Be Accreditation for Distance Learning Law Schools in the Not-So Distant Future? &#8211; Above the Law</a>.</p></blockquote> <p>Mitchell attended <a href="http://www.concordlawschool.edu/">Concord Law School</a>, owned by Kaplan. He isn&#8217;t the only Concord student to distinguish himself:</p> <blockquote><p>Last weekend, Concord Law School students Marjorie Daily and Tom Fleming prevailed in the Regional Competition Rounds of the American Constitution Society’s (ACS) Constance Baker Motley Moot Court Competition, which took place at the University of Michigan Law School. This qualifies them for the National Finals, which will take place at the ACS’s national meeting this summer in Washington, D.C. It is a terrific achievement for two non-traditional, part-time law students who attend our unique and still evolving online law school program.</p> <p>via <a href="http://www.rethinkinghighereducation.com/2009/03/non-traditional-law-students-and-moot-court/">Non-Traditional Law Students and Moot Court</a>.</p></blockquote> <p>So are online options a viable alternative to traditional legal education? The ABA is considering opening up the option to allow greater accreditation for such schools. I think that&#8217;s a good idea.</p> <p>I do think the in-person aspect of law school is absolutely critical for less experienced students. But in the case of students with life experience already, law school is more about professional training than anything else. Certainly, it seems Concord law students learn to &#8220;think like a lawyer&#8221; without needing to spend 3 years in a physical classroom.</p> <p>In my own experience, the first year of classroom experience was very important. Perhaps it could have been replicated via distance learning &#8211; perhaps not. But I certainly believe the next two years of class room training could have easily been done remotely, with the exception of the practical training (an externship with the courts, interning with legal aid). But this practical training does not require attendance at a traditional law school, just interaction with legal professionals.</p> <p>So, while I appreciated my in-person education, I certainly think appropriately accredited and supervised distance learning education could be equally effective. But whatever the approach, law school education could use a shakeup &#8212; perhaps <a href="http://www.concordlawschool.edu/">Concord</a> represents at least one good new approach?</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/07/are-law-schools-relevant-to-the-future-of-law/"> Are law schools relevant to the future of law? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.professorbainbridge.com/professorbainbridgecom/2009/07/is-law-a-mature-industry.html"> Is Law a &#8220;Mature&#8221; Industry? </a> (professorbainbridge.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/will-internet-replace-universities.html"> Will the Internet Replace Universities? </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=23117257-c61c-46f3-97cf-04e9f85d4193" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "When is print better than online?" https://inpropriapersona.com/articles/when-is-print-better-than-online/ Mon, 13 Jul 2009 17:12:49 +0000 ed5a9c65b0edf220bff3d7169f947970 <p><a id="aptureLink_rOgHZafIdQ" style="padding: 0px 6px; float: right;" href="http://www.flickr.com/photos/limaoscarjuliet/225249268/"><img class="alignright" style="border: 0px none;" title="&quot;the law&quot; by Flickr user limaoscarjuliet, licensed under a Creative Commons Attribution 2.0 license " src="http://static.flickr.com/96/225249268_a1bfcd0d68.jpg" alt="" width="233" height="311" /></a></p> <p><a class="zem_slink" title="Greg Lambert" rel="wikipedia" href="http://en.wikipedia.org/wiki/Greg_Lambert">Greg Lambert</a> at 3 Geeks and a Law Blog writes:</p> <blockquote><p>Generally, the discussion has tended to lean toward the idea that online research will trump print research due to the convenience of the format and how the upcoming generation will prefer online over print media.</p> <p>via <a href="http://www.geeklawblog.com/2009/07/legal-research-metrics-499-year-or-825.html">3 Geeks and a Law Blog: Legal Research Metrics &amp; Ethics: $499 a Year Or $825 an Hour?</a>.</p></blockquote> <p>But Lambert points out that many researchers have discovered that in certain situations and with certain kinds of material, even young lawyers are discovering that online access &#8211; at least, as delivered by the current providers &#8211; just doesn&#8217;t work as well.</p> <p>Cost is a major element of this: online access to a treatise (a compendium of legal research, opinion, etc. that&#8217;s an extremely useful resource for understanding an area of the law before diving into more specifics) can run to around $825 an hour, while the print version of the same treatise costs $499 per year (or less, if you don&#8217;t mind out-of-date treatises). But it&#8217;s more than simply the straight-up cost of access &#8211; print research can be more effective and time-efficient for many tasks:</p> <blockquote><p>Then along comes a recession and all of a sudden it becomes apparent that online research is &#8220;expensive&#8221; and for some forms of research &#8211; specifically treatise research &#8211; online research doesn&#8217;t work very well. Take a poll at one of the practice group meetings you attend and ask the attorneys point blank: &#8220;When researching in treatises, do you find you are more efficient using the print version of a treatise, or the online version of a treatise?&#8221; I&#8217;d almost give you 2 to 1 odds that the print version will be the preferred method.</p> <p>via <a href="http://www.geeklawblog.com/2009/07/legal-research-metrics-499-year-or-825.html">3 Geeks and a Law Blog: Legal Research Metrics &amp; Ethics: $499 a Year Or $825 an Hour?</a></p></blockquote> <p>Myself, I find that online case-law research so much more effective than the print alternative that I strongly support eliminating the print versions of decisions completely. There is simply no point in filling libraries with dead trees holding out-of-date case law that&#8217;s difficult and time-consuming to cross-reference.</p> <p>However, treatises are a different story. The longer, more in-depth format, combined the the benefits of browsing vs. searching when it comes to broad areas of the law, make the print versions far more attractive than their current online counterparts.</p> <p>This is essentially the same reason why I do not read books on my computer screen: it is uncomfortable and limiting.</p> <p>The <a class="zem_slink" title="Amazon Kindle" rel="homepage" href="http://www.amazon.com">Kindle</a> and other e-readers substantially reduce this argument, however, and that is exactly what I see for the future of treatises. The benefits of &#8220;online&#8221; access (especially linking) simply do not outweigh the per-hour charges or the inefficiency of search vs. browse. Electronic readers, with one-time charges like print, add effective electronic searching while preserving much (but not all &#8211; flipping back and forth between sections, or having multiple volumes open at once are still not possible) help bridge this gap.</p> <p>My prediction: treatises will move to electronic media, and &#8220;online&#8221; access via <a class="zem_slink" title="LexisNexis" rel="wikipedia" href="http://en.wikipedia.org/wiki/LexisNexis">LexisNexis</a> or <a class="zem_slink" title="Westlaw" rel="wikipedia" href="http://en.wikipedia.org/wiki/Westlaw">Westlaw</a> will be reduced to quick scans and database searches, with researchers then taking it &#8220;offline&#8221; to their Kindle. (Of course, the &#8220;online&#8221; vs. &#8220;offline&#8221; distinction is inaccurate, since the Kindle has built-in wireless networking &#8211; so we need to find a better term to capture the distinction.)</p> "Openness and the social web" https://inpropriapersona.com/articles/openness-and-the-social-web/ Fri, 10 Jul 2009 15:00:40 +0000 3f72ed9d1a3ed4ff71f947fc6fce2f15 <p>A recurring theme for me is the difficulty of keeping markets &#8220;open,&#8221; in the sense of empowering customers and users with information and choice, while still permitting businesses to grow and innovate.</p> <p>This concern underlies my interest in <a class="zem_slink" title="Distributive justice" rel="wikipedia" href="http://en.wikipedia.org/wiki/Distributive_justice">distributive justice</a>, limiting copyright and patent monopolies, <a class="zem_slink" title="Open Source" rel="wikinvest" href="http://www.wikinvest.com/concept/Open_Source">open-source</a> software and open-access publishing. I try not to fall too far to one side of the debate, but rather am a proponent of a balanced approach to these issues so that the &#8220;<a class="zem_slink" title="Free market" rel="wikipedia" href="http://en.wikipedia.org/wiki/Free_market">free market</a>&#8221; can function effectively to grow GDP while protecting <a class="zem_slink" title="Human rights" rel="wikipedia" href="http://en.wikipedia.org/wiki/Human_rights">human rights</a>, ethical values, and so on.</p> <p>Chris Messina hits on this theme in <a href="http://factoryjoe.com/blog/2009/05/18/the-open-social-web/">The open, social web</a>:</p> <blockquote><p>For me, openness is about freedom of choice and unfettered access to compete in an open marketplace. To that end, you still must protect against monopolistic threats, which can jeopardize entry to markets and therefore require regulation.</p></blockquote> <p>In the posting, he brings in some economic concepts from Beril Hatt&#8217;s Ph.D. work that, he believes, are necessary to &#8220;defeat monopolies in social networks and cloud-based markets&#8221;:</p> <blockquote> <ul> <li>data portability: related to switching costs; an example of this is phone number portability (which require government intervention to achieve)</li> <li>multi-homing: increasing reliability through parallelization; the example I used was ping.fm, which allows you to publish content simultaneously to multiple destinations, thereby defeating network exclusivity and lock-in</li> <li>roaming: have access to and using other people’s networks; I showed a text message that I received from AT&amp;T explaining how they wanted to charge me $20/MB while roaming in Europe. Clearly networks don&#8217;t like it when their customers roam!</li> <li>disaggregation: service substitutability; in this case the photo-editing service Picnik imports photos from a multitude of sources, avoiding tightly coupling itself an any one particular service, unlike Facebook&#8217;s photo-sharing service, which can only be used and accessed on facebook.com.</li> </ul> </blockquote> <div style="margin-top: 10px; height: 15px;">Recommended reading.</div> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=5861d3fe-84eb-487e-9ef0-8ea77b1c3415" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Write an article; find a job" https://inpropriapersona.com/articles/write-an-article-find-a-job/ Thu, 09 Jul 2009 15:00:42 +0000 c450ee3168108fbafca95965a63c73ed <p><a id="aptureLink_PXgBL2KLeo" style="float: right; padding-top: 0px; padding-right: 6px; padding-bottom: 0px; padding-left: 6px; " href="http://www.peopleplusconsulting.com/images/JobSearchNewspaper.jpg"><img style="border-top-width: 0px; border-right-width: 0px; border-bottom-width: 0px; border-left-width: 0px; border-style: initial; border-color: initial; " title="Job Search" src="http://www.peopleplusconsulting.com/images/JobSearchNewspaper.jpg" alt="" width="200px" height="148px" /></a>Debra Bruce suggests that lawyers looking for work think about writing an article to aid in finding a job:</p> <blockquote><p>Start now to generate opportunities to distinguish yourself from the competition and widen your circle of connections. Remember, relationships make the difference, especially in a tight market. You probably have more time available for research and writing now. Establish your expertise (or develop some), and give your resume some additional sparkle by writing an article on a legal topic you are interested in. via <a href="http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202432065613&amp;rss=careercenter">lawjobs.com Career Center &#8211; Aid Your Job Search: Get Published </a>.</p></blockquote> <p>Importantly, she suggests that non-law review articles may be the best bet here:</p> <blockquote><p>You don&#8217;t need to write a law review article. Contact industry magazines, legal newspapers, business journals and online publications. They need new articles every month or even more frequently, and most don&#8217;t require blue book citation. Many employers are more likely to read articles in such publications than in law reviews.</p></blockquote> <p>This is good advice, and very similar to the <a href="https://inpropriapersona.com/2009/07/using-a-blog-to-get-a-job/">idea behind blogging as a means for finding a job</a>. By become an expert on a subject, and demonstrating both that expertise and your writing ability, you increase the chances of connecting with a potential employer. In addition, interviewing other experts in order to write your article gives you a reason to speak with potential employers or collegues without asking for a job &#8211; which can be key for good networking. Again, networking is the key &#8211; which is not always something I do very well!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/5-social-networking-sites-for-legal-job-seekers/"> 5 Social Networking Sites for Legal Job Seekers </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/07/using-a-blog-to-get-a-job/">Using a blog to get a job</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/social-media-for-law-students-and.html"> Social media for law students (and everyone else) </a> (inpropriapersona.com)</li> </ul> "Using a blog to get a job" https://inpropriapersona.com/articles/using-a-blog-to-get-a-job/ Wed, 08 Jul 2009 15:05:18 +0000 1638433d50b1bda4bdf47ac084902e9c <p><a href="http://www.flickr.com/photos/digitalparadox/16900939/"><img class="alignright" title="Quill and modern pen by DigitalParadox" src="http://farm1.static.flickr.com/11/16900939_6c103aeef1_m.jpg" alt="" width="240" height="181" /></a>A blog can be a very useful way for a lawyer looking for work to find connections and, hopefully, get a job. I <a href="https://inpropriapersona.com/2007/09/10-reasons-for-law-student-to-blog.html">previously wrote about this</a> in the context of law students, pointing out that a blog can help you define how employers looking for your info online see you, build your personal &#8220;brand&#8221; and reputation, and sharpen your writing skills.</p> <p>A blog can be equally beneficial to a more seasoned lawyer looking for a job after law school, as <a href="http://lawyerist.com/2009/07/07/start-a-blog-get-a-job/">Niki Black writes</a> at Lawyerist:</p> <blockquote><p>Blogging can be beneficial to the legal job seeker in many ways. Through a blog, you can:</p> <ul> <li>Demonstrate your substantive knowledge;</li> <li>Showcase your writing and analytical skills; and</li> <li>Convince prospective employers that you are on top of changes in your field.</li> </ul> <p>For the attorney in search of a job, blogging will be most effective if the blog focuses on the substantive area of law in which you hope to practice.</p> <p>via <a href="http://lawyerist.com/2009/07/07/start-a-blog-get-a-job/">Start a blog, get a job | Lawyerist</a>.</p></blockquote> <p>Blogging is just an updated method of networking. Certainly is doesn&#8217;t guarantee a job, but every path to show your talent and abilities takes you a little closer to connecting with the right employer or client.</p> "Are law schools relevant to the future of law?" https://inpropriapersona.com/articles/are-law-schools-relevant-to-the-future-of-law/ Tue, 07 Jul 2009 18:00:13 +0000 11e49164c8526aa7c66d40ec65c07754 <p><a href="http://www.flickr.com/photos/brookenovak/337889974/"><img class="alignright" title="&quot;Drive Thru LAWYER !&quot; by Flickr user Brooke Novak, used under a Creative Commons Attribution 2.0 license." src="http://farm1.static.flickr.com/123/337889974_fdd029b0f2_m.jpg" alt="" width="240" height="158" /></a></p> <blockquote><p>Paul Lippe, a well-known Silicon Valley GC and founder of <a href="http://www.legalonramp.com/">Legal OnRamp</a> (LOR), recently posted an essay on the Am Law Daily that essentially argues that law schools, at least in their present form, are not relevant to the future of law.</p> <p>via <a href="http://www.elsblog.org/the_empirical_legal_studi/2009/07/are-law-schools-part-of-problem-or-the-solution.html">Empirical Legal Studies: Law School 4.0: Are Law Schools Relevant to the Future of Law?</a>.</p></blockquote> <p>As a recent law graduate, perhaps I am biased, but I personally believe that academics has a great deal to offer the professional community, although the current legal educational methodology could use some revisions. Academic legal research should supplement professional law, just as academic medical research does for the medical profession, but it should also produce effective and well-trained lawyers.</p> <p>Despite my belief that I benefited from three years of law school, I still believe there is much to be improved. For example:</p> <ul> <li>A single final at the end of a term is not the best way to measure or encourage effective learning.</li> <li>Forcing everyone to go through <a class="zem_slink" title="Moot court" rel="wikipedia" href="http://en.wikipedia.org/wiki/Moot_court">moot court</a> (appellate arguments) but not learn how to argue motions in front of a <a class="zem_slink" title="Trial court" rel="wikipedia" href="http://en.wikipedia.org/wiki/Trial_court">trial court</a> judge misses what most trial lawyers do.</li> <li>Similarly, teaching exclusively from appellate courses &#8211; and barely showing students a single brief &#8211; misses another key part of what many lawyers do.</li> <li>Additionally, and perhaps most importantly, acting as if all of us will go on to be trial lawyers at large firms neglects what many of us will really be doing during our legal careers &#8211; which is in reality is hugely varied, ranging from general counsel to trial attorney to judge to venture capital to academic researcher to, well, anything.</li> </ul> <p>A professional school that fails to teach the profession &#8212; in at least a few varieties and forms &#8212; as it is practiced today is not much of a professional school, however effectively it teaches students to &#8220;think like a lawyer.&#8221;</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/jobs-for-new-lawyers-are-hard-to-come.html"> Jobs for new lawyers are hard to come by </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/will-internet-replace-universities.html"> Will the Internet Replace Universities? </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3910523f-cb32-457f-8bbb-1bea631677dc" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "WordPress and the GPL" https://inpropriapersona.com/articles/wordpress-and-the-gpl/ Mon, 06 Jul 2009 15:00:06 +0000 b33bd2e48028ceb018d244a6f538818e <p><img class="alignright" src="https://s.w.org/about/images/logos/wordpress-logo-notext-rgb.png" alt="WordPress Logo" width="100" height="100" />The <a class="zem_slink" title="WordPress" href="http://wordpress.org" rel="homepage">WordPress</a> blog has an interesting post up about the applicability of the <a class="zem_slink" title="GNU General Public License" href="http://en.wikipedia.org/wiki/GNU_General_Public_License" rel="wikipedia">GPL</a> to WordPress themes, based on an opinion provided by the <a href="http://en.wikipedia.org/wiki/Software_Freedom_Law_Center">Software Freedom Law Center</a>:</p> <blockquote><p>If WordPress were a country, our Bill of Rights would be the GPL because it protects our core freedoms. We’ve always done our best to keep WordPress.org clean and only promote things that are completely compatible and legal with WordPress’s license. There have been some questions in the community about whether the GPL applies to themes like we’ve always assumed. To help clarify this point, I reached out to the Software Freedom Law Center, the world’s preeminent experts on the GPL, which spent time with WordPress’s code, community, and provided us with an official legal opinion. One sentence summary: PHP in WordPress themes must be GPL, artwork and CSS may be but are not required.</p> <p>via <a href="http://wordpress.org/development/2009/07/themes-are-gpl-too/">WordPress › Blog » Themes are GPL, too</a>.</p></blockquote> <p>Lloyd writes at A Fool&#8217;s Wisdom that:</p> <blockquote><p>Talking about licensing really is <a href="http://web.archive.org/web/20121018145100/http://foolswisdom.com/licensing-is-the-suck/">the suck</a>. Matt’s article became necessary lately as some commercial theme developers have been very aggressive to WordPress community members, who have shared theme code as allowed by WordPress’s viral GPL v2 license.</p> <p>It frustrates me when I read commercial theme developers complaining about people “stealing” their themes after the thousands of hours they have worked. They make no mention of the hundreds of thousands of hours others have worked on <a href="http://wordpress.org/">WordPress</a> (counting on the <a href="http://creativecommons.org/licenses/GPL/2.0/"> GPL protecting their freedoms </a>).</p> <p>via <a href="http://web.archive.org/web/20120619043916/http://foolswisdom.com:80/commercial-wordpress-themes-gpl2/">Commercial WordPress Theme&#8217;s PHP Code is GPL 2 Too</a>.</p></blockquote> <p>The main point of the legal opinion is that any WordPress theme is so entwined with the main WordPress code as to make it a &#8220;<a class="zem_slink" title="Derivative work" href="http://en.wikipedia.org/wiki/Derivative_work" rel="wikipedia">derivative work</a>,&#8221; and thus subject to WordPress&#8217; <a class="zem_slink" title="Copyright" href="http://en.wikipedia.org/wiki/Copyright" rel="wikipedia">copyright</a> and licensing (which is the GPL).</p> <p>There has been some disagreement in the community about this legal opinion &#8211; based on the &#8220;viral&#8221; nature of the GPL &#8211; that WordPress themes also need to be GPL. The main argument against seems to be based on the idea that a WordPress theme could function independently of WordPress. If this were possible, then it would not be an independent work at all.</p> <p>James Vasile, who wrote the opinion, <a href="http://hackervisions.org/?p=419">noted</a> that there might be a situation like this, but that it would be unlikely:</p> <blockquote><p>[I]magine using WordPress to serve a single static page. You would use a WordPress theme that does not contain any php but is simply HTML. The HTML would look a lot like data that just passes through the PHP process to the client and does not include any blog entries or sidebar functionality.</p> <p>It&#8217;s a trivial case that turns WordPress into a very complicated version of cat, but that theme would probably be a separate work.</p> <p>via <a href="http://hackervisions.org/?p=419">comments to CMS Themes and the GPL</a>.</p></blockquote> <p>I must say that I find the legal opinion to be strong and defensible, and the alternative opinion &#8211; that themes are not derivative works &#8211; much less convincing based on current copyright law. Actually, as much as I appreciate the GPL, I do not think this is necessarily correct public policy, even if it works in this specific GPL case (right result, perhaps, wrong policy basis). After all, if WordPress carried a non-GPL, more commercial license, then themes could be banned or controlled in very negative ways &#8211; a result I would not appreciate.</p> <p>To restate again, I think themes would legally be too tied to WordPress and are indeed bound to the GPL &#8211; I don&#8217;t like the law that makes it so &#8211; but I do generally like the GPL (which undermines traditional licensing, but is only powerful because of public-policy problems with the law).</p> <p>Finally, Mark Ghosh, in an article provocatively titled &#8220;Licensing is the vehicle, our users are the environment, writes:</p> <blockquote><p>In all of our vacillations, are we getting away from our core philosophies? <strong>The freedoms that the GPL and WordPress have offered to the folks who choose to make money from WordPress, are also designed to help another, larger group of people. The people who use the software. </strong></p> <p>via <a href="http://weblogtoolscollection.com/archives/2009/07/05/licensing-is-the-vehicle-our-users-are-the-environment/">weblogtools collection</a>.</p></blockquote> <p>Indeed.</p> "Should ringtones count as a “public performance”?" https://inpropriapersona.com/articles/should-ringtones-count-as-a-public-performance/ Sun, 05 Jul 2009 15:15:00 +0000 ee965a4701f421c635ed7be46796b451 <p>Should someone &#8212; either you or your carrier &#8212; have to pay additionally for a &#8220;public performance&#8221; of a song when your phone rings?</p> <blockquote><p>In the ringtone case [part of <a href="http://www.eff.org/cases/us-v-ascap">U.S. v. ASCAP</a>], ASCAP&#8217;s argument is the mirror image of the NMPA&#8217;s on interactive streams: It contends that ringtones involve a public performance when they&#8217;re first delivered to a cellphone, and again when the phone rings. My favorite part of ASCAP&#8217;s latest brief is when it explains what makes a ringtone a public performance: &#8220;It need only be &#8216;capable&#8217; of being performed to the public; whether the ringtone is set to play, and indeed <em>whether anyone hears it</em>, is of no moment&#8221; (emphasis added).</p> <p>Some folks may pick ringtones precisely because the public will hear and admire them, just as some people carry boom boxes in public or sing as they shop. But as the advocacy groups note, copyright law provides a specific exemption from infringement claims for performances that aren&#8217;t transmissions to the public, seek no commercial advantage and collect no compensation. Does that ring a bell?</p> <p>via <a href="http://latimesblogs.latimes.com/technology/2009/07/a-big-week-for-copyrights-and-piracy.html">A big week for copyrights and piracy | Technology | Los Angeles Times</a>.</p></blockquote> <p>The <a class="zem_slink" title="Electronic Frontier Foundation" rel="homepage" href="http://www.eff.org/">Electronic Frontier Foundation</a> adds its opinion on the matter, which seems right on to me:</p> <blockquote><p>Fortunately for consumers, ASCAP&#8217;s theory is foreclosed by the <a href="http://w2.eff.org/legal/cases/betamax/">Sony Betamax ruling</a>, where the Supreme Court held that because it&#8217;s a fair use for you to time-shift TV, it&#8217;s also perfectly legal for Sony to sell you a VCR to do it. Sony did not have to run a second fair use gauntlet for its commercial VCR-selling business.</p> <p>In short, if there&#8217;s no infringement liability for the customer, there can be no secondary liability for the carriers. (ASCAP also has a theory that the carriers are direct infringers because they set up the system that causes phones to ring in public, but that theory is pretty handily wiped out by the recent <a href="http://www.eff.org/deeplinks/2008/08/victory-dvrs-cloud">Cablevision ruling</a>, where the court found that setting up a &#8220;remote DVR&#8221; service doesn&#8217;t make you a direct infringer when your customers use it.)</p> <p>Or, put another way, if it&#8217;s noninfringing for you, it&#8217;s also noninfringing for a technology company to provide you with the means to do it.</p> <p>via <a href="http://www.eff.org/deeplinks/2009/06/ascap-wants-be-paid-">ASCAP Wants To Be Paid When Your Phone Rings</a>.</p></blockquote> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.theregister.co.uk/2009/07/03/ascap_eff_ringtones_copyright_infringement_claims/"> Lawyers claim ringtones are public performance </a> (theregister.co.uk)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/media/news/2009/06/ringing-up-cash-ascap-suing-att-for-ringtone-performance.ars"> Ringing up cash: ASCAP suing AT&amp;T for ringtone &#8220;performance&#8221; </a> (arstechnica.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=0d10d140-1bd5-4f36-abc4-71da1d527a38" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "BlawgIT’s introduction to “fair use”" https://inpropriapersona.com/articles/blawgits-introduction-to-fair-use/ Sat, 04 Jul 2009 16:00:35 +0000 03de3cefcc4a78f007b70cfbffb63926 <p>Brett Trout has a useful introduction to &#8220;fair use&#8221; up on BlawgIT. The goal is to help you &#8220;spot the issues&#8221; and avoid some common urban legends, like:</p> <ul> <li>&#8220;I am not making money on it; it&#8217;s fair use.&#8221;</li> <li>&#8220;They should be happy with the free press.&#8221;</li> <li>&#8220;I&#8217;m making them money, it&#8217;s fair use.&#8221;</li> <li>&#8220;It didn&#8217;t have a copyright notice on it; it&#8217;s fair use.&#8221;</li> </ul> <p>via <a href="http://blawgit.com/2009/06/30/fair-use-faq/">Fair Use FAQ | BlawgIT</a>.</p> <p>Recommended reading for anyone who cites, quotes, or reuses other&#8217;s work &#8211; which is pretty much everyone these days.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://bravenewfilms.org/blog/?p=70880"> Remix Culture: Making Fair Use Your Friend </a> (bravenewfilms.org)</li> <li class="zemanta-article-ul-li"><a href="http://www.hyperorg.com/blogger/2009/04/28/plagiarism-and-fair-use/"> Plagiarism and Fair Use </a> (hyperorg.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=5ae43ac9-d4fa-427b-b1c5-b21244a03a0c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The myth of “original creation”" https://inpropriapersona.com/articles/the-myth-of-original-creation/ Fri, 03 Jul 2009 20:00:13 +0000 1f19bf246a78f9c3536a967ad37f9f8b <p><a href="http://www.flickr.com/photos/smithsonian/3378207391/"><img class="alignright" title="Gerty Theresa Radnitz Cori (1896-1957) and Carl Ferdinand Cori (1896-1984)" src="http://farm4.static.flickr.com/3440/3378207391_32203fffe4_m.jpg" alt="Gerty Theresa Radnitz Cori (1896-1957) and Carl Ferdinand Cori (1896-1984)" width="196" height="240" /></a></p> <p>Techdirt has an interesting article up about the myth of the &#8220;original creator&#8221; &#8211; the idea that copyright and IP protects individual creators working in a vacuum come up with new, unique ideas that are not based on anything that precedes them. This is, as any author, musician, or inventor knows, not the way it works in practice.</p> <blockquote><p>It&#8217;s nice to see more and more people recognizing and speaking out about these things. The idea that there is a single &#8220;author&#8221; or &#8220;creator&#8221; who deserves to get money any time anyone else builds upon his or her works is something that should be seen as increasingly ridiculous as people recognize that all works are created based on the works of others, and it&#8217;s inherently silly to try to charge everyone to pay back each and every one of their influences in creating a new work.</p> <p>via <a href="http://techdirt.com/articles/20090629/0230145396.shtml">The Myth Of Original Creators | Techdirt</a>.</p></blockquote> <p>Even though many people think of this idea as foundational to the justification for copyright, it is not only not the way creation happens, but also ignores the fact that many copyright and patent owners are not the original creators of the work. A justification of original creation actually supports a &#8220;moral rights&#8221; approach to IP &#8211; taken more by Europeans, and especially the French &#8211; not the American approach, which focuses on ownership of rights and monetary rewards for supporting innovation.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/copyright-as-antidote-to-drm.html"> Copyright as Antidote to DRM </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2be27ad1-946c-40f1-b1f8-d4c9c095491b" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Patent simulation study concludes current patent system hampers innovation" https://inpropriapersona.com/articles/patent-simulation-study-concludent-current-patent-system-hampers-innovation/ Fri, 03 Jul 2009 18:00:13 +0000 d429007fc6071e9d7a77c7fe10f82f22 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/82175587@N00/3222442854"><img title="USPTO@Alexandria" src="http://farm4.static.flickr.com/3094/3222442854_dc90239199_m.jpg" alt="USPTO@Alexandria" width="240" height="160" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/82175587@N00/3222442854">cytech</a> via Flickr</dd> </dl> </div> </div> <p>A recently published law review article takes an interesting approach to testing the hypothesis that patents foster innovation:</p> <blockquote><p>Patent systems are often justified by an assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems. However, little empirical evidence exists to support this assumption. One way to test the hypothesis that a patent system promotes innovation is experimentally to simulate the behavior of inventors and competitors under conditions approximating patent and non-patent systems. Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems (&#8220;The Patent Game&#8221;), this study compares rates of innovation, productivity, and societal utility.</p> <p>via <a href="http://ssrn.com/abstract=1411328">Patents and the Regress of Useful Arts</a>.</p></blockquote> <p><a class="zem_slink" title="ReadWriteWeb" rel="homepage" href="http://readwriteweb.com">ReadWriteWeb</a> has a good write-up describing the study and its conclusions:</p> <blockquote><p>The game is an online simulation of a pure patent system, a patent-free commons system, and a mixed system. Within each environment, first year university students were asked to license, assign, infringe, and enforce patents. The study found that while a mixed patent environment and pure patent environment did not offer substantially different results, students in a commons system generated significantly higher rates of innovation, productivity and social utility. Essentially, the study supports what <a href="http://www.lessig.org/">Lawrence Lessig</a> and free culture advocates have been saying for years: a society free from intellectual property monopolies is a society that is better off.</p> <p>via <a href="http://www.readwriteweb.com/archives/study_says_patents_hinder_innovation.php">Study says Patents Hurt Innovation</a>.</p></blockquote> <p>The article concludes that experiments with &#8220;PatentSim&#8221; do not support the general justification of our current patent system:</p> <blockquote><p>Data generated thus far using PatentSim suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p&lt;0.05), productivity (p&lt;0.001), and societal utility (p&lt;0.002) than does a commons system. These results are inconsistent with the orthodox justification for patent systems. However, they do accord well with evidence from the increasingly important field of user and open innovation.</p></blockquote> <p>This comports well with my own feelings about the patent system after research and work with intellectual property issues during and after law school. As the article points out, the Constitutional basis of our patent system is to &#8220;promote the progress of science and the useful arts&#8221; &#8211; if this isn&#8217;t happening, then our system is not living up to its Constitutional mandate, and ought to be rethough (not, I think, abandoned).</p> <p>Modern treaty obligations that the United States has supported might make this more difficult to accomplish, since now we are also bound by international obligations as well as constitutional ones (although the courts consistently say the Constitution trumps international treaties and agreements). But simply because change is difficult does not mean we shouldn&#8217;t consider it &#8211; and doing so may well benefit us and encourage business and innovation.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/do-patents-stimulate-r-investment-and.html">Do Patents Stimulate R&amp;D; Investment and Promote Growth?</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/economists-abolish-copyright-patents-to.html">Economists: Abolish Copyright &amp; Patents to Save the Economy</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=67ffa47e-c11f-4bf3-87c8-203f515f3c5c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Attorney ethics require effective research skills: “the torture memos”" https://inpropriapersona.com/articles/attorney-ethics-require-effective-research-skills-the-torture-memos/ Thu, 02 Jul 2009 18:00:32 +0000 e0eb4a712f451aba332a7a7731f0f38a <p><a href="http://www.flickr.com/photos/ericejohnson/2588362220/"><img class="alignright" title="&quot;Law Books 2&quot; by Flickr user Eric E Johnson, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license " src="http://farm4.static.flickr.com/3044/2588362220_5b8879d958_m.jpg" alt="" width="240" height="180" /></a>Whatever you feel about the &#8220;torture memos,&#8221; one underlying lesson is an important one for any lawyer: failure to do effective research when advising your client can be as much of a breach of ethical rules as failure to meet deadlines.</p> <blockquote><p>Critics say the lawyers left out important, relevant cases that would have pointed to different conclusions.</p> <p>For example, in 1983, a Texas sheriff was tried for waterboarding prisoners. Justice Department prosecutors called the practice torture. But a 2002 Justice Department memo analyzing whether waterboarding is torture makes no mention of the case.</p> <p>. . .<br /> Maybe lawyers didn&#8217;t intentionally skew the law. Maybe they just missed the Texas case.</p> <p>Wendel says that points to another ethics rule.</p> <p>&#8220;Ethics rules can require good lawyering, so sloppy lawyering can be a violation of the duty of competence,&#8221; he says.</p> <p>via <a href="http://www.npr.org/templates/story/story.php?storyId=106118681">Did Justice Department Lawyers Violate Ethics? : NPR</a>.</p></blockquote> <p>The appellate case following up this Texas sheriff case was <span id="xref"><em>United States v. Lee</em>, 744 F.2d 1124 (5th Cir. Tex. 1984). It took me some time to find using <a class="zem_slink" title="LexisNexis" rel="wikipedia" href="http://en.wikipedia.org/wiki/LexisNexis">LexisNexis</a>, partly because it refers to &#8220;waterboarding&#8221; as &#8220;water torture.&#8221; In addition, the appellate case cited above deals more with the severability of defenses rather than with torture itself &#8211; that was, apparently, dealt with at the <a class="zem_slink" title="Trial court" rel="wikipedia" href="http://en.wikipedia.org/wiki/Trial_court">trial court</a> level (trial court decisions are much more difficult to find, and generally carry no precedential value anyway).</span></p> <p>Certainly, given the limited information on this particular case, I don&#8217;t think it&#8217;s a slam-dunk ethical violation not to have cited it &#8211; although, that said, this was a case argued and won by the Justice Department itself. Every law firm and organization I&#8217;ve been in always has searchable records of their own briefs and cases. I doubt the Justice Department is any different. That fact certainly raises the bar for Justice Department lawyers.</p> <p>Regardless of this specific instance, I think it&#8217;s important that these days, minimum ethical standards require online searching, not just looking in a few indices and printed journals. They may also require maintaining and searching a firm&#8217;s <em>own</em> briefs and cases (&#8220;knowledge management,&#8221; in IT terms) in more detail than merely using Lexis or <a class="zem_slink" title="Westlaw" rel="wikipedia" href="http://en.wikipedia.org/wiki/Westlaw">Westlaw</a>.</p> <p>Certainly I&#8217;ll be interested, even outside of the specific investigation of these lawyers, in what the final report will say about attorney ethics and the importance of effective and comprehensive research.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://andrewsullivan.theatlantic.com/the_daily_dish/2009/06/the-latest-from-the-apa-on-torture.html"> The Latest from the APA On Torture </a> (andrewsullivan.theatlantic.com)</li> <li class="zemanta-article-ul-li"><a href="http://thinkprogress.org/2009/04/28/bybee-defends-his-torture-memos/"> Bybee defends his torture memos as &#8216;legally correct&#8217; and &#8216;a good-faith analysis of the law.&#8217; </a> (thinkprogress.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=791b42b7-b67e-4884-a825-f8cc64b31e4e" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Researchers typically forbidden from sharing own work" https://inpropriapersona.com/articles/researchers-typically-forbidden-from-sharing-own-work/ Wed, 01 Jul 2009 15:00:02 +0000 9cecf46692b5e38e780fba883d61c16b <blockquote><p><a href="http://www.3rdpartyfeedback.com/">Ed Kohler</a> points us to a long, but fascinating blog post, by Stuart Shieber, a CS professor at Harvard, discussing the <a href="http://blogs.law.harvard.edu/pamphlet/2009/06/18/dont-ask-dont-tell-rights-retention-for-scholarly-articles/">somewhat ridiculous copyright situation that many academics deal with</a> in trying to promote their own works. I&#8217;ve heard similar stories from other professors I know, but this one is worth reading. Shieber points out the importance of academics getting their research published in journals, but how annoying it is that most journals require those academics to give up all sorts of rights &#8211; including the right to distribute their own research on their websites. However, he notes that most published academics simply ignore this rule, and you end up with a &#8220;don&#8217;t ask, don&#8217;t tell&#8221; policy. Even though they&#8217;re legally prevented from putting up a PDF of their work on their website, they do so anyway, and journals just look the other way.</p> <p>via <a href="http://techdirt.com/articles/20090625/0342445360.shtml">The Ridiculous Copyright Situation Faced By Academics Who Want To Promote Their Own Research | Techdirt</a>.</p></blockquote> <p>Traditional journals and publishers make this deal required for authors, especially in the sciences. In medical journals, the <a class="zem_slink" title="National Institutes of Health" rel="geolocation" href="http://maps.google.com/maps?ll=39.000443,-77.102394&amp;spn=1.0,1.0&amp;q=39.000443,-77.102394%20%28National%20Institutes%20of%20Health%29&amp;t=h">NIH</a> <a class="zem_slink" title="Open access (publishing)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Open_access_%28publishing%29">open-access</a> mandate has opened up this to some extent, since it requires authors to get consent to put their article in <a class="zem_slink" title="PubMed Central" rel="wikipedia" href="http://en.wikipedia.org/wiki/PubMed_Central">PubMed Central</a>. The restriction is understandable, though, given publisher&#8217;s old business models. But the world is changing, and journals &#8211; scientific and otherwise &#8211; are having to adapt.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/open-access-policy-flourishes-nih.html"> Open-access policy flourishes at NIH </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/disruption-and-change-in-publishing/"> Disruption and change in publishing </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/tech-policy/news/2009/03/mit-to-make-all-faculty-publications-open-access.ars">MIT to make all faculty publications open access</a> (arstechnica.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b964fc95-4f4a-4ad3-9a09-317c3c1e4a17" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Disruption and change in publishing" https://inpropriapersona.com/articles/disruption-and-change-in-publishing/ Mon, 29 Jun 2009 20:31:26 +0000 27732dd4472697603c8be166ca75b70f <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://www.daylife.com/image/0fTIdKD9dqdK3?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=0fTIdKD9dqdK3&amp;utm_campaign=z1"><img title="DENVER - FEBRUARY 26: Rocky Mountain News sta..." src="http://cache.daylife.com/imageserve/0fTIdKD9dqdK3/150x100.jpg" alt="DENVER - FEBRUARY 26: Rocky Mountain News sta..." width="150" height="100" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com">Daylife</a></dd> </dl> </div> </div> <p><a class="zem_slink" title="Michael Nielsen (quantum information theorist)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Michael_Nielsen_%28quantum_information_theorist%29">Michael Nielsen</a> wrote a stellar piece dealing with disruptive changes that doom old <a class="zem_slink" title="Business model" rel="wikipedia" href="http://en.wikipedia.org/wiki/Business_model">business models</a> &#8211; specifically, newspapers and science publishers, to mention his examples. He does a particularly good job at explaining how this could happen <em>even without anyone doing anything wrong or stupid.</em></p> <blockquote><p>The problem is that your newspaper has an organizational architecture which is, to use the physicists’ phrase, a <a class="zem_slink" title="Local optimum" rel="wikipedia" href="http://en.wikipedia.org/wiki/Local_optimum">local optimum</a>. Relatively small changes to that architecture &#8211; like firing your photographers &#8211; don’t make your situation better, they make it worse. So you’re stuck gazing over at <a class="zem_slink" title="TechCrunch" rel="homepage" href="http://www.techcrunch.com">TechCrunch</a>, who is at an even better local optimum, a local optimum that could not have existed twenty years ago</p> <p>via <a href="http://michaelnielsen.org/blog/?p=629">Michael Nielsen » Is scientific publishing about to be disrupted?</a></p></blockquote> <p>He goes on to describe the impact he sees ahead for scientific publishers, a group fighting against new trends like <a class="zem_slink" title="Open access (publishing)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Open_access_%28publishing%29">open access</a> that is ultimately doomed by new economic and business realities enabled by the Internet and other <a class="zem_slink" title="Disruptive technology" rel="wikipedia" href="http://en.wikipedia.org/wiki/Disruptive_technology">disruptive technologies</a>.</p> <p>Highly recommended.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.ericjohnolson.com/blog/2009/06/19/the-media-story-an-economic-perspective/"> The Media Story: An Economic Perspective </a> (ericjohnolson.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/open-access-policy-flourishes-nih.html"> Open-access policy flourishes at NIH </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/journalism-and-ethical-blogging/"> Journalism and Ethical Blogging </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/saving-newspapers-by-changing-law.html"> Saving Newspapers by Changing the Law </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=6f576100-969d-4f87-855d-3e8d1ea704e7" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Judge Posner: Expand copyright to protect newspapers?" https://inpropriapersona.com/articles/judge-posner-expand-copyright-to-protect-newspapers/ Mon, 29 Jun 2009 13:00:42 +0000 fa35ee17d6f631ecbe78f1850bbe99ff <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/Image:TOI_press.jpg"><img title="A picture from the top of the Geoman Press at ..." src="http://upload.wikimedia.org/wikipedia/en/thumb/9/93/TOI_press.jpg/300px-TOI_press.jpg" alt="A picture from the top of the Geoman Press at ..." width="300" height="225" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/Image:TOI_press.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>Judge <a class="zem_slink" title="Richard Posner" rel="wikipedia" href="http://en.wikipedia.org/wiki/Richard_Posner">Richard Posner</a> has <a href="http://web.archive.org/web/20091121061749/http://www.becker-posner-blog.com:80/archives/2009/06/the_future_of_n.html">recently suggested</a> that <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright law</a> might need to be expanded to protect the news industry, including barring linking to copyrighted content or paraphrasing it. I view such protectionism as effectively enabling &#8220;rent seeking&#8221; by the established news industry. Ultimately, such acts harm society more than they help it. Certainly, at times legal intervention is important to improve markets (banning monopolies, establishing and enforcing safety standards, regulating financial institutions), but this is one case where I am more in favor of a libertarian/&#8221;let me market decide&#8221; approach. Perhaps this is because I am more confident that alternatives to traditional newspapers will emerge to provide new venues for professional journalism, even if the exact form that will take is still unclear.</p> <p>Posner, and many in favor of expanding copyright and intellectual property, are generally obsessed with the &#8220;free rider&#8221; problem: people other than the original creator (or owner) scooping up their labor and profiting by it., without adding any additional value. Free riders undercut the incentive to create.</p> <p>Jeff Jarvis thinks Posner&#8217;s view of free riding in this context is backwards:</p> <blockquote><p>Schultz and the Marbergers complain about what they call the “free-riding” of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.</p> <p>These newspaper people are the ones trying to act as if they own the news and can monopolize it. Those days are over, thank God.</p> <p>via <a href="http://www.buzzmachine.com/2009/06/28/first-kill-the-lawyers-before-they-kill-the-news/">First, kill the lawyers &#8211; before they kill the news</a>.</p></blockquote> <p>I think, though, that Posner&#8217;s free rider worry is a indeed concern to be aware of, just as worrying about those who may seek to exploit welfare systems are cause for concern. But an over-obsession with this problem can lead to overly restrictive policies that stifle innovation and hamper new ideas, new approaches, and keep society stuck in place. This is good if you are a &#8220;have,&#8221; and bad if you are a &#8220;have not&#8221; &#8211; or if you&#8217;re an entrepreneur with a new idea.</p> <p>I am not the only this troubling. There has been a vigorous reaction his idea that expanding copyright laws to protect newspapers &#8220;might be necessary&#8221; to avoid a duopoly on &#8220;news and opinion&#8221;:</p> <blockquote><p>Imagine if the New York Times migrated entirely to the World Wide Web. Could it support, out of advertising and subscriber revenues, as large a news-gathering apparatus as it does today? This seems unlikely, because it is much easier to create a web site and free ride on other sites than to create a print newspaper and free ride on other print newspapers, in part because of the lag in print publication; what is staler than last week&#8217;s news. Expanding copyright law to bar online access to copyrighted materials without the copyright holder&#8217;s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder&#8217;s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.</p> <p>via <a href="http://web.archive.org/web/20091121061749/http://www.becker-posner-blog.com:80/archives/2009/06/the_future_of_n.html">The Becker-Posner Blog: The Future of Newspapers &#8211; Posner</a>.</p></blockquote> <p>Economist Gary Becker instead argues that, while &#8220;the printed newspaper business is doomed,&#8221; this does not mean the end of independent and accurate news sources:</p> <blockquote><p>Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication.</p> <p>via <a href="http://web.archive.org/web/20091205093115/http://www.becker-posner-blog.com:80/archives/2009/06/the_social_cost.html">The Becker-Posner Blog: The Social Cost of the Decline of Newspapers &#8211; Becker</a>.</p></blockquote> <p>Mike Masnick at Techdirt responded to Posner&#8217;s idea by saying:</p> <blockquote><p>Wow. Now Posner has always been a stronger believer in the need for intellectual property to &#8220;solve&#8221; the &#8220;<a class="zem_slink" title="Free rider problem" rel="wikipedia" href="http://en.wikipedia.org/wiki/Free_rider_problem">free rider problem</a>,&#8221; but this is still stunning. He&#8217;s usually a lot more balanced in recognizing the downsides to greater IP protectionism. Here, he seems to ignore it completely, while also brushing off the ability of other sources of information to step into the void created by newspapers. Right before the statement above, he oddly assumes that there&#8217;s no way to support news production in an online only situation. His mistake, though, is assuming that it needs to have the <em>same type of profits</em> as monopoly newspapers used to have. For such an economically literate person, this is a surprising statement.</p> <p>via <a href="http://techdirt.com/articles/20090625/0415405361.shtml">Judge Posner Recommends Extending Copyright Law to Protect Newspapers | Techdirt</a>.</p></blockquote> <p>And Erick Schonfeld of TechCrunch is highly critical as well:</p> <blockquote><p>Of all the <a href="http://www.techcrunch.com/2009/06/03/the-apis-plan-to-save-newspapers-lets-put-humpty-dumpty-back-together-again/">misguided schemes</a> put forth lately to save newspapers (<a href="http://www.techcrunch.com/2009/05/18/there-we-go-again-no-micropayments-wont-save-journalism/">micropayments!</a> <a href="http://www.techcrunch.com/2009/04/07/that-whining-sound-you-hear-is-the-death-wheeze-of-newspapers/">blame Google!</a>), the one put forth by Judge Richard Posner has to be the most jaw-dropping. He suggests that linking to copyrighted material should be outlawed.</p> <p>via <a href="http://www.techcrunch.com/2009/06/28/how-to-save-the-newspapers-vol-xii-outlaw-linking/">How to Save the Newspapers, Vol. XII: Outlaw Linking</a>.</p></blockquote> <p>As I suggested above, I am not in favor of Posner&#8217;s idea, but I do share some of the worry that quality journalism might be threatened, at least in the short term. I, however, do not blame &#8220;linking&#8221; or &#8220;paraphrasing,&#8221; but rather a combination of a rapidly changing business landscape with a certain reluctance by newspapers to adapt. Change is not easy, and protectionism always seems easier to hold on to what one already has. But radically changing long-establish legal precedent around the copyrightability and protection of &#8220;facts&#8221; is not the best way forward in the long term. A similar push against change backfired on American car manufacturers; I predict a similar fate for newspapers even if the law is changed to &#8220;protect&#8221; them.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://tech.slashdot.org/story/09/06/28/1619211/Judge-Thinks-Linking-To-Copyrighted-Material-Should-Be-Illegal?from=rss"> Judge Thinks Linking To Copyrighted Material Should Be Illegal </a> (tech.slashdot.org)</li> <li class="zemanta-article-ul-li"><a href="http://kevin.lexblog.com/2009/06/articles/blog-law-and-ethics/lawyers-ill-equipped-to-advise-on-intersection-of-social-media-and-copyright-laws/">Lawyers ill equipped to advise on intersection of social media and copyright laws : Real Lawyers Have Blogs</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/everything-is-free-is-not-a-business-model/"> &#8220;Everything is free&#8221; is not a business model </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/saving-newspapers-by-changing-law.html">Saving Newspapers by Changing the Law</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=41ef6a8a-1222-4ca2-8607-85a25a70dc5b" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "“Copyfraud” and Google Books" https://inpropriapersona.com/articles/copyfraud-and-google-books/ Sat, 27 Jun 2009 01:15:36 +0000 ed531c585811a5aff8725619b3478350 <p><a title="On the Road manuscript" href="http://flickr.com/photos/44124466908@N01/93966538"><img class="alignright" title="&quot;On the Road manuscript&quot; by Flickr user Steve Rhodes, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm1.static.flickr.com/43/93966538_a09eed9b97_m.jpg" alt="" width="240" height="160" /></a><a title="Copyfraud: Poisining the public domain" href="http://www.theregister.co.uk/2009/06/26/copyfraud/">The Register</a> and <a title="Copyfraud is Stealing the Public Domain" href="http://news.slashdot.org/story/09/06/26/1422248/Copyfraud-Is-Stealing-the-Public-Domain?from=rss">Slashdot</a> have picked up a theme from a 2006 law review article by Jason Mazzone on &#8220;copyfraud,&#8221; extending the idea to explain a new incarnation of it emerging in relation to <a class="zem_slink" title="Google Book Search" rel="homepage" href="http://books.google.com/">Google Books</a>. Mazzone wrote:</p> <blockquote><p>Copyfraud is everywhere. False <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright</a> notices appear on modern reprints of Shakespeare&#8217;s plays, Beethoven&#8217;s piano scores, greeting card versions of Monet&#8217;s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner&#8217;s permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.</p> <p>via <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244#PaperDownload">Copyfraud by Jason Mazzone on SSRN</a>.</p></blockquote> <p>The article on the Register describes a newer player in this scheme: Google Books.</p> <blockquote><p>Kessinger [a publisher] made the [<a class="zem_slink" title="Public domain" rel="wikipedia" href="http://en.wikipedia.org/wiki/Public_domain">public domain</a>] document useless to scholars, to force them to purchase the full hardcopy edition for $25. Links on the Google Books page directed purchasers to <a href="http://www.amazon.com/gp/product/1419121871">the Kessinger edition on Amazon.com</a> and other online booksellers. Scholars were <a href="http://muninn.net/blog/2006/01/google-books-and-the-public-domain.html">outraged</a>. These works are clearly in the public domain, dating back to the 1890s and beyond.</p> <p>When questioned, Google <a href="http://booksearch.blogspot.com/2006/11/from-mail-bag-public-domain-books-and.html" target="_blank">said</a> it &#8220;must err on the side of caution&#8230; until we have determined that the book has entered the public domain.&#8221; But with the sheer volume of ebooks being submitted by outside publishers, there are obvious delays in clearing rights. Some publishers have exploited this gap, providing copyfraud editions where no free edition was available.</p> <p>via <a href="http://www.theregister.co.uk/2009/06/26/copyfraud/">Copyfraud: Poisining the public domain</a> from The Register.</p></blockquote> <p>Legally, though frustrating, the situation is not always quite as clear cut a case of &#8220;stealing&#8221; from the public domain and &#8220;defrauding&#8221; the general public. Certainly, the process outlined in the Register article is essentialy that:</p> <blockquote><p>Committing copyfraud is astonishingly easy and costs nothing. I can borrow a public domain book from any library and scan it, or I could download <a href="http://www.gutenberg.org/etext/8130" target="_blank">the text</a> from <a class="zem_slink" title="Project Gutenberg" rel="homepage" href="http://www.gutenberg.org/wiki/Main_Page">Project Gutenberg</a>. I reformat it as a PDF, mark it with a copyright date, register it as a new book with an ISBN, then submit it to Amazon.com for sale. I may not even need to print and bind any books, I can offer it through Amazon&#8217;s <a href="http://www.amazon.com/gp/help/customer/display.html?nodeId=13685731" target="_blank">Booksurge</a> print-on-demand service, or as an ebook on <a href="https://dtp.amazon.com/mn/signin" target="_blank">Kindle</a>. Once the book is listed for sale, I can submit it to Google Books for inclusion in its index. I could easily publish thousands of books; most would never sell, but with zero up-front cost, any sale is pure profit.</p></blockquote> <p>The key part of the above scheme is the scanning or copying of text <em>directly</em>, adding nothing new (or very little new, anyway &#8211; not enough to establish a copyright anyway). With no new value added (in loose terms &#8211; copyright is more complicated than this), there is no &#8220;new&#8221; work at all. Thus, there is no valid copyright. I can still sell these works, of course, but Google should not deny full access to them.</p> <p>Re-typesetting a book (and possibly editing it, fixing errors, and generally adding value) is a different story. If a publisher does enough new to the book, it&#8217;s very possible that doing so would generate a copyright on the newly typeset book &#8211; <em>but still not </em>on the text itself. That would remain in the public domain, free to be typeset by someone else, quoted from at any length, or otherwise shared. But copyright &#8211; at least in a &#8220;thin&#8221; form &#8211; would, I believe, likely protect against straight-up photocopying or scanning of the newly published book itself, and that would then likely include that particular edition in Google Books as well.</p> <p>&#8220;Thin copyright&#8221; covers works that, for example, add only limited additional value to a public domain work. The <a href="http://w2.eff.org/IP/DMCA/copyrightoffice/20030515_css_dvd.php">Electronic Frontier Foundation explains</a>:</p> <blockquote><p>[W]here copyright owners have a thin copyright &#8211; for instance, where they choose to release a compilation DVD with a public domain work bundled with works in which they do hold the copyright. In either case, the copyright owner would obtain, at best, a thin copyright in the non- public domain elements, but does not thereby obtain copyright in an uncopyrightable public domain work. As recognized by numerous cases, including the Supreme Court&#8217;s decisions in <em> Harper &amp; Row v. Nation Enterprises </em>[471 US 539 (1981)] and <em><a class="zem_slink" title="Feist Publications v. Rural Telephone Service" rel="wikipedia" href="http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service">Feist Publications, Inc. v. Rural Telephone Service Co.</a>, </em>499 U.S. 345 (1991), and the Ninth Circuit&#8217;s decision in <em>Sega v. Accolade, </em> the public continues to retain the right to access the uncopyrightable parts of the compilation. An exemption is required to allow consumers to exercise their right of access and to prevent copyright owners from using technological protection measures as a bootstrap to extend their thin copyrights over public domain works.</p></blockquote> <p><em>Remember: the law is pretty much always more complicated than it appears at first glance!</em></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/random-house-disabling-kindle-speech.html"> Random House disabling Kindle speech </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f00ccddb-4534-43f0-8ba5-e471a473943d" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Law blogging and attorney advertising: Stern v. Bluestone" https://inpropriapersona.com/articles/law-blogging-and-attorney-advertising-stern-v-bluestone/ Thu, 25 Jun 2009 20:27:33 +0000 b653f965766d51eebfd916229b6ce9b7 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:NY_Court_of_Appeals_emblem.svg"><img title="New York Court of Appeals emblem" src="http://upload.wikimedia.org/wikipedia/commons/thumb/2/2c/NY_Court_of_Appeals_emblem.svg/300px-NY_Court_of_Appeals_emblem.svg.png" alt="New York Court of Appeals emblem" width="300" height="300" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/Image:NY_Court_of_Appeals_emblem.svg">Wikipedia</a></dd> </dl> </div> </div> <p>The <a class="zem_slink" title="New York Court of Appeals" rel="geolocation" href="http://maps.google.com/maps?ll=42.652319,-73.753946&amp;spn=0.01,0.01&amp;q=42.652319,-73.753946%20%28New%20York%20Court%20of%20Appeals%29&amp;t=h">New York State Court of Appeals</a>, in <em>Stern v. Bluestone</em>, 2009 NY Slip Op 04740 (2009), overturned a lower court ruling that ruled that a faxed newsletter dealing with attorney malpractice issues &#8211; the same area in which the author of the newsletter practiced. Lower courts thought this newsletter constituted advertising, and thus ran into rules about attorney advertising. The Court of Appeals disagreed.</p> <p>Why is this important for law bloggers?</p> <blockquote><p>The primary purpose of most law blogs is the dissemination of information. Like Bluestone’s &#8220;Attorney Malpractice Report,&#8221; blogs educate the reader about a subject matter that is unrelated to the self-promotion of the blogger.</p> <p>Certainly increased visibility of the blogger is a byproduct of the publication of a successful blog; and as a result of that visibility, new clients may follow.</p> <p>But, that doesn’t mean that the primary purpose of the blog is the retention of clients.</p> <p>In comparison, I think that most people would agree that the primary purpose of television and radio ads, billboard ads, professional Web sites and yellow page ads is the retention of clients. Blogs are different because the primary purpose of blogs &#8211; sharing information &#8211; is separate and distinct from the self-promotion that is the essential element of most advertisements.</p> <p>Thankfully, the court’s decision in <em>Stern v. Bluestone</em> is a strong indication that the highest court in New York understands this distinction. The court understands that lawyers’ creative use of emerging Internet technologies is, in many instances, simply an extension of traditional networking activities, including speaking at a seminar, authoring an article in a legal publication, distributing a newsletter via e-mail or joining a committee at the local bar association.</p> <p>It’s good to know that the highest court in New York &#8220;gets it.&#8221;</p> <p>via <a href="http://21stcenturylaw.wordpress.com/2009/06/24/the-court-of-appeals-gets-it-when-it-comes-to-technology/">The Court of Appeals “gets it” when it comes to technology « Practicing Law in the 21st Century-A Law &amp; Technology Blog</a>.</p></blockquote> <p>In short: the same logic could be applied to a topical law blog written by an attorney, making this ruling important outside of the realm of faxed newsltters. In addition, lthough this ruling applies only to New York State,many states have similar rules, and hopefully this ruling bodes well for potential cases in other jurisdictions.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/journalist-shield-laws-and-bloggers.html"> Journalist Shield Laws and Bloggers </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/05/when-law-prevents-righting-wrong.html">When Law Prevents Righting a Wrong</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=aa85eaf8-2481-4024-bc3f-667291b4579f" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Amazon’s Kindle and digital rights management" https://inpropriapersona.com/articles/amazons-kindle-and-digital-rights-management/ Thu, 25 Jun 2009 20:11:46 +0000 ed0be2a48208791ce80ec3ed8f466952 <p>There have been several stories over the last week about issues related to digital rights management (DRM) on <a class="zem_slink" title="Amazon" rel="homepage" href="http://amazon.com/">Amazon</a>&#8216;s <a class="zem_slink" title="Amazon Kindle" rel="homepage" href="http://www.amazon.com">Kindle</a>. After much confusion from Amazon customer service, the final update, as far as I can tell, is as follows:<a title="ebooks kindle amazon" href="http://flickr.com/photos/43017881@N00/2048264201"><img class="alignright" src="http://farm3.static.flickr.com/2087/2048264201_ae2e6c7105_m.jpg" alt="" width="181" height="240" /></a></p> <blockquote><p>You are able to redownload your books an unlimited number of times to any specific device.</p> <p>Any one time the books can be on a finite number of devices. In most cases that means you can have the same book on six different devices.</p> <p>Unfortunately the publishers decide how many licenses, that is devices, a book can be on at any one time. While most of the time that will be five or six different devices there will be times when it’s only one device.</p> <p>At the present time there is no way to know how many devices can be licensed prior to buying the book.</p> <p>According to the customer rep, there is a project to try to get that information available to the customer but it’s not yet available.</p> <p>Finally, when you have reached a limit of six devices and you swap one older device for a new one, it does not automatically reset the number of licenses so you can add the new one. Amazon can release all of the licenses which will remove any given book from all of the devices and then allow you to re-download it that same number of times.</p> <p>via <a href="http://www.geardiary.com/2009/06/21/kindlegate-confusion-abounds-regarding-kindle-download-policy/">KindleGate: Confusion Abounds Regarding Kindle Download Policy</a>.</p></blockquote> <p>It sounds like Amazon&#8217;s trying to get the right balance for you &#8211; but this points out a general problem with DRM in the marketplace: it&#8217;s very confusing. This undercuts a general argument out there that &#8220;the marketplace has spoken&#8221; in terms of acceptance of DRM. If consumers have limited access to information, the market is inefficient, and cannot accurately measure consumer desires.</p> <p>This kind of issue always makes me leery to purchase DRM protected media, and when I do, it encourages me to see if there is a way to remove the protection (so that I can freely use what I&#8217;ve purchased, not so I can share it with the world) &#8211; even if I never do so, it&#8217;s nice to know I can if the company fails or changes the rules on me.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090623/0415565326.shtml"> Amazon Kindle DRM Strikes Again: You Don&#8217;t Really Own Your eBooks </a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="http://consumerist.com/5300527/amazon-tries-to-clarify-download-limits-for-kindle-books-doesnt-quite-succeed"> Amazon Tries To Clarify Download Limits For Kindle Books, Doesn&#8217;t Quite Succeed [Drm] </a> (consumerist.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.makeuseof.com/tag/how-to-strip-mobi-and-prc-ebooks-of-encryption/"> How To Remove DRM from MOBI and PRC eBooks </a> (makeuseof.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/random-house-disabling-kindle-speech.html"> Random House disabling Kindle speech </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/copyright-as-antidote-to-drm.html"> Copyright as Antidote to DRM </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/electronic-texts-and-rent-seeking.html"> Electronic texts and rent-seeking publishers </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d86ad4a2-1c2a-498e-8107-76c5f26f4228" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Unravelling the Canadian Copyright Lobby" https://inpropriapersona.com/articles/unravelling-the-canadian-copyright-lobby/ Wed, 24 Jun 2009 18:07:56 +0000 d2bb0c5393463be92828161157d76d5f <p>Especially important to everyone in Canada &#8211; but important to everyone around the world, since copyright and IP are increasingly international issues due to attempts at harmonization (<a class="zem_slink" title="World Intellectual Property Organization" rel="homepage" href="http://www.wipo.int/">WIPO</a>, for example) &#8211; comes this expose by <a class="zem_slink" title="Michael Geist" rel="homepage" href="http://www.michaelgeist.ca">Michael Geist</a> on the undue influence pro-copyright lobbyist organizations have had on Canadian policy documents:<a href="http://www.flickr.com/photos/pierre_tourigny/144056132/"><img class="alignright" title="Parliament Hill Planet - manitou2121" src="http://farm1.static.flickr.com/55/144056132_f7a2f91a33_m.jpg" alt="" width="240" height="240" /></a></p> <blockquote><p>Although there are many groups involved in copyright lobbying, at the heart of the strategy are two organizations &#8211; the Canadian Recording Industry Association and the Canadian Motion Picture Distributors Association. <a class="zem_slink" title="Canadian Recording Industry Association" rel="wikipedia" href="http://en.wikipedia.org/wiki/Canadian_Recording_Industry_Association">CRIA</a>&#8216;s board is made up the four major music labels plus its director, while the CMPDA&#8217;s board is comprised of representatives of the Hollywood movie studios. Those same studios and music labels provide support for the International Intellectual Property Association, which influences Canadian copyright policy by supporting U.S. government copyright lobby efforts.</p> <p>In addition to their active individual lobbying (<a href="http://www.michaelgeist.ca/content/view/4013/125/">described here</a>), CRIA and CMPDA have provided financial support for three associations newly active on copyright lobbying &#8211; the <a href="http://www.cacn.ca/members-list.html">Canadian Anti-Counterfeiting Network</a>, the <a href="http://web.archive.org/web/20130130175542/http://www.ipcouncil.ca/members.html">Canadian Chamber of Commerce&#8217;s IP Council</a>, and the <a href="http://web.archive.org/web/20090222012828/http://occ.on.ca:80/Directory/Corporate">Ontario Chamber of Commerce</a> (there are other funders including pharmaceutical companies and law firms). Those groups have issued virtually identical reports and in turn supported seemingly independent sources such as the Conference Board of Canada and paid polling efforts through Environics.</p> <p>via <a href="http://www.michaelgeist.ca/content/view/4079/125/">Michael Geist &#8211; Unravelling the Canadian Copyright Policy Laundering Strategy</a>.</p></blockquote> <p>Regardless of where you fall on the copyright debate, this is an important article, and one I recommend reading for useful background on classic &#8220;rent-seeking&#8221; behaviour by entrenched interests. Any fabricated or overly biased information reduces the chance we will make positive decisions that benefit society as a whole &#8211; which, at least in the British/American/Canadian tradition of IP, is a main point of copyright.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/06/24/how-the-canadian-cop.html"> How the Canadian copyright lobby uses fakes, fronts, and circular references to subvert the debate on copyright </a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20090623035304/http://www.canada.com:80/news/Copyright+report+lacked+sufficient+balance+Conf+Board/1705978/story.html"> Copyright report &#8216;lacked sufficient balance&#8217;: Conf. Board </a> (canada.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/05/28/conference-board-of.html"> Conference Board of Canada admits that its publicly funded, plagiarized, biased copyright &#8220;research&#8221; is junk </a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/against-intellectual-monopoly.html">Against Intellectual Monopoly</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=084ea5c9-c174-4f20-bb40-8aa98fe70a09" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "5 Social Networking Sites for Legal Job Seekers" https://inpropriapersona.com/articles/5-social-networking-sites-for-legal-job-seekers/ Tue, 23 Jun 2009 15:00:56 +0000 14d28873c3be93fb17c3cc20e5e2b46d <p>Today&#8217;s legal job market <a title="Jobs for new lawyers are hard to come by" href="https://inpropriapersona.com/2009/04/jobs-for-new-lawyers-are-hard-to-come.html">is tough</a>. To succeed, you need to use all the tools you can. Some of these tools require <a title="Technology and social media alter recruiting and job seeking" href="https://inpropriapersona.com/2009/06/technology-and-social-media-alter-recruiting/">new rules</a>, although all build on old-fashioned approaches, like networking and building a reputation. So here are five tools to bring your job search into the world of online social networking: Facebook, LinkedIn, Plaxo, Twitter, and JD Supra.</p> <h2><a href="http://www.facebook.com">Facebook</a></h2> <p><a href="http://www.crunchbase.com/company/facebook"><img class="alignright" title="Facebook" src="http://www.crunchbase.com/assets/images/resized/0000/4561/4561v1-max-138x333.png" alt="" width="138" height="56" /></a>Facebook is a social networking Web site focused on connecting people with each other. Many of us have now experienced the joy (and occasional pain) of (re-)connecting with people from high school, college, or law school through the site.</p> <p>Many people have decried the negative aspects of Facebook in the job search, primarily the ability of potential employers to find personal information (such as drunken party photos, political/social leanings, etc.) out about you through the service. Although this can certainly be a problem for a naive individual, it should not keep you from using the service, provided you: (1) do not post photographs (or better yet, do not participate in situations) that you would derail your chances of employment (drunkenness, drug use, etc. &#8211; this is particularly true for legal professionals) and (2) keep your personal life confined (through various Facebook limiting mechanisms) to those who know you. If in doubt &#8211; don&#8217;t put it online.</p> <p>From a job seeking perspective, Facebook will not find you a job. It is not Monster.com or similar job search site. Instead, it is an extension of old-school networking &#8211; meeting people, connecting with people, sharing with people. Use similar approaches on Facebook that you would use in person, but remember: Facebook is focused more on personal connections that professional ones, so treat it accordingly.</p> <ul> <li><strong>Do not</strong> attempt to &#8220;friend&#8221; business connections who you barely know via Facebook. (Save those for LinkedIn, next on the list).</li> <li><strong>Do</strong> let your actual friends know via Facebook that you are looking for a job.</li> <li><strong>Do</strong> search for people you may know who do work like you wish to do, or who work where you want to work. You may be surprised that you actually know someone who can put in a good word for you.</li> </ul> <h2><a href="http://www.linkedin.com">LinkedIn</a></h2> <p><a href="http://www.crunchbase.com/company/linkedin"><img class="alignright" title="LinkedIn" src="http://www.crunchbase.com/assets/images/resized/0001/1055/11055v1-max-138x333.png" alt="" width="138" height="63" /></a>LinkedIn is like Facebook for professionals, minus the games, the sharing, the pictures, and everything else that makes Facebook so &#8220;sticky.&#8221; But these limitations are its biggest asset, because they turn it into a truly professional zone. Everything you put on LinkedIn should be professional, with only a passing nod to your personal life (to make you real). In terms of posting information to LinkedIn, it is best to think of it as an in-depth, network-enhanced resume. It is not for arringing to meet friends at the movies, nor for sharing your vacation pics to Cancun.</p> <p>Unlike Facebook, LinkedIn is the perfect place to connect with business acquantances who you do not know well. In this sense, think of LinkedIn as your social Rolodex of business contacts, with recirocal connections, recommendations, and easy searching.</p> <ul> <li><strong>Do</strong> connect with those you meet.</li> <li><strong>Do not</strong> connect with people you have never met, unless you arrange an introduction (supported by LinkedIn). To do otherwise is to invite trouble and do your reputation more harm than good.</li> <li><strong>Do</strong> update your status on LinkedIn with <em>professional</em> information related to your job search.</li> <li><strong>Do</strong> search for companies and look for people you know there.</li> <li><strong>Do</strong> pay attention to &#8220;friend-of-friends&#8221; who you may be able to be introduced to through LinkedIn. This is a very valuable part of LinkedIn networking!</li> <li><strong>Do</strong> get recommendations from current and former co-workers. A LinkedIn profile of an active job seeker with no recommendations is potentially problematic, as it suggests that no one wants to recommend you!</li> <li><strong>Do</strong> keep your profile updated with current information.</li> </ul> <h2><a href="http://www.plaxo.com">Plaxo</a></h2> <p><a href="http://www.crunchbase.com/company/plaxo"><img class="alignright" title="Plaxo" src="http://www.crunchbase.com/assets/images/resized/0000/3880/3880v1-max-138x333.jpg" alt="" width="138" height="47" /></a>Plaxo is in some ways like LinkedIn and Facebook: it connects people with each other. It has a more professional bent than Facebook, and in that way is more similar to LinkedIn (including an online profile hat is more like a resume than Facebook&#8217;s, for example). Its current incarnation is more focused on &#8220;lifestreaming&#8221;: gathering up and synchronizing your online life in one place:</p> <blockquote><p>Plaxo is about synchronizing all that’s important to you in one single place. It’s about staying in touch with all those who you care about… your family, your friends and your business contacts. With Plaxo’s Pulse, we keep you up to date with what your friends, family and Business contacts are up to.</p> <ul> <li>You can Share photos, videos, reviews and more…</li> <li>You can share content from the websites you use like Flickr, YouTube, Digg and a growing list of activity stream sites you can activate.</li> <li>You can represent yourself on the web with your own profile. Choose what to share and with whom.</li> <li>And with the Plaxo Address book, get the information you need for the people you know and Sync it to places you already use.</li> <li>You Plaxo calendar syncs with Yahoo!, Gmail, Outlook, Mac and a growing number of sync points to make sure you don&#8217;t forget what you&#8217;re doing.</li> </ul> <p>Plaxo is all this in one place and that’s why it’s the most efficient and fun place to be in. And most important of all, you decide who gets to see what.</p></blockquote> <p>It is worth it to establish a Plaxo profile while job searching, and keep it updated. (Not having recommendations on Plaxo is also less of a problem, as long as you have them on LinkedIn.)</p> <p>Plaxo&#8217;s aggregation support for your online activities is powerful, but has the potential to mix your personal and professional lives together. Thus, be <em>very careful</em> of this.</p> <ul> <li><strong>Do</strong> establish and maintain your profile.</li> <li><strong>Do</strong> use the aggregation and synching tools, if they are useful to you.</li> <li><strong>Do not</strong> mix personal and professional updates.</li> <li><strong>Do</strong> use Plaxo&#8217;s tools to contain your personal updates to your personal friends.</li> </ul> <h2><a href="http://www.twitter.com">Twitter</a></h2> <p><a href="http://www.crunchbase.com/company/twitter"><img class="alignright" title="Twitter" src="http://www.crunchbase.com/assets/images/resized/0000/2755/2755v28-max-138x333.png" alt="" width="138" height="38" /></a>Twitter is a newer contender to the social media landscape. It permits posting short status messages, which may include links to articles, blog posts, pictures, etc. In a professional context &#8211; remember, you are job seeking &#8211; these status messages should stay away from &#8220;crazy party last night&#8221; and steer more towards the &#8220;excellent article, I recommend you read it.&#8221;</p> <p>Unlike Facebook, LinkedIn, and Plaxo, connections in Twitter are one way: you can follow people, or they can follow you, but reciprocity is not required.</p> <p>To find useful people to follow, look for those in your field. A good place to start is <a href="http://www.lextweet.com/">LexTweet</a>, which aggregates legal Tweets &#8211; consider joining as well and participating.</p> <p>My recommendations:</p> <ul> <li><strong>Do</strong> read about how others are using Twitter professionally.</li> <li><strong>Do</strong> keep your postings professional.</li> <li><strong>Do</strong> mix in some personal updates to be &#8220;real,&#8221; but remember &#8211; a potential employer may be reading them, so be judicious.</li> <li><strong>Do</strong> &#8220;add value&#8221; by Tweeting useful information.</li> <li><strong>Do not</strong> use tools to mass add followers, or similar &#8220;spammy&#8221; behaviors.</li> </ul> <h2><a href="http://www.jdsupra.com/">JD Supra</a></h2> <p><a href="http://www.crunchbase.com/company/jd-supra"><img class="alignright" title="JD Supra" src="http://www.crunchbase.com/assets/images/resized/0003/7718/37718v1-max-138x333.png" alt="" width="138" height="49" /></a>JD Supra is a different alternative to the above sites. Unlike the four above, it is focused exclusively on the legal community:</p> <blockquote><p>As a <strong>legal professional</strong>, you <a href="http://www.jdsupra.com/post/documentHandler.aspx">post your court filings, decisions, forms and/or articles</a> to JD Supra’s database, a free tool for legal research. You also <a href="http://www.jdsupra.com/profile/createProfile.aspx">create an in-depth professional profile</a> that is freely available simply by browsing or keyword searching, or via link from any of your posted documents.</p></blockquote> <p>A profile on JD Supra provides a useful addition to your LinkedIn and Plaxo profiles &#8211; but that&#8217;s not the core value of the site. The main point is to <em>demonstrate </em>your value to potential employers (and clients, for that matter) by sharing your work via JD Supra: filings, briefs, articles, etc.</p> <p>At first glance, it may seem like you are giving your work away for &#8220;free&#8221; &#8211; but in reality, you are receiving value: respect. Your value as a lawyer, after all, does not come through directly selling your prior work &#8211; but rather in using your prior work to sell yourself.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.socialmediatoday.com/SMC/103285">A Brief Guide to Personal Branding using Social Media </a> (socialmediatoday.com)</li> <li><a href="http://www.lateralattorneyreport.com/2009/06/using-social-networking-in-your-job-search/">Using Social Networking in Your Job Search</a> (lateralattorneyreport.com)</li> <li><a href="http://web.archive.org/web/20101206205140/http://marketplace.publicradio.org/display/web/2009/05/22/mm_social/">Social networking your way to a job</a> (marketplace.publicradio.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none ; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d82f7f65-01ea-412d-8575-4fd589458879" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "File sharing and “fair use”" https://inpropriapersona.com/articles/file-sharing-and-fair-use/ Mon, 22 Jun 2009 15:30:36 +0000 0deaa0bc94280c5a1ff544c4119ad9fd <p><a href="http://www.flickr.com/photos/shankarmenon/2368346202/"><img class="alignright" title="I love my music ! - Image by shankar, shiv" src="http://farm4.static.flickr.com/3247/2368346202_05edffd868_m.jpg" alt="Image by shankar, shiv" width="158" height="240" /></a></p> <p>Latoicha Givens writes:</p> <blockquote><p>In the case of <a href="http://blogs.law.harvard.edu/cyberone/riaa/">RIAA vs. Joel Tenenbaum</a>, the court is currently accepting an argument that <a class="zem_slink" title="File sharing" rel="wikipedia" href="http://en.wikipedia.org/wiki/File_sharing">peer to peer file sharing</a> is a <a class="zem_slink" title="Fair use" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fair_use">Fair Use</a> exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime.</p> <p>via <a href="http://phillipsgivenslaw.blogspot.com/2009/06/file-sharing-fair-use-what-does-it-mean.html">IP LAW 101: File Sharing &amp; Fair Use: What does it mean for Consumers</a>.</p></blockquote> <p>She goes through the four main &#8220;fair use&#8221; factors considered by judges. Stanford&#8217;s library has an <a href="http://fairuse.stanford.edu">overview of copyright and fair use</a> which states the four as:</p> <blockquote> <ol type="1"> <li>1. the purpose and character of your use</li> <li>2. the nature of the copyrighted work</li> <li>3. the amount and substantiality of the portion taken, and</li> <li>4. the effect of the use upon the potential market.</li> </ol> <p>via <a href="http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html">Measuring Fair Use: The Four Factors</a>.</p></blockquote> <p>She points out that, if this argument is accepted, then at least limited file sharing would become legal:</p> <blockquote><p>If Tennebaum&#8217;s argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.</p></blockquote> <p>(Of course, if this were to occur, the lobbysts would be hard at work getting Congress to explictely eliminate such protection.)</p> <p>Keep in mind, too, that although such an outcome might make file sharing acceptable in certain contexts, this would only be from the individual consumer level. Any ads, subscriptions might well take it out of this context. In other words, any money making might well doom a defendant&#8217;s fair use argument.</p> <p>I suspect that even large-scale file sharing without commercial intent might go to item #4 above, too, making <a class="zem_slink" title="Napster" rel="wikipedia" href="http://en.wikipedia.org/wiki/Napster">Napster</a> or Bittorrent still illegal. Still, it would be an interesting outcome, and one that might well be a good outcome for consumers &#8211; and possibly even beneficial to labels, if it helps to advertise their work in non-commercial contexts.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/copyright-as-antidote-to-drm.html"> Copyright as Antidote to DRM </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/libraries-and-fair-use.html"> Libraries and Fair Use </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/the-thomas-file-sharing-retrial/">The Thomas file-sharing retrial</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=46d27bc3-9946-47b5-99c1-10a4a6b79e4f" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The long history of restrictions on speech" https://inpropriapersona.com/articles/the-long-history-of-restrictions-on-speech/ Fri, 19 Jun 2009 19:30:48 +0000 720a15a10dce79ca534300eff181c2fa <blockquote><p><a title="Courtroom One Gavel" href="http://flickr.com/photos/63126465@N00/117048243"><img class="alignright" src="http://farm1.static.flickr.com/54/117048243_7cc6bb0b87_s.jpg" alt="" width="75" height="75" /></a>The fact is that throughout much of American history, there were all sorts of restrictions &#8211; on vulgarity, on harsh criticism of religion, on speech that had the tendency to encourage people not to register for the draft, and much more &#8211; that would be pretty clearly unconstitutional today. They didn&#8217;t come from the modern multiculturalist left, or from any discernible predecessor of it. Many, perhaps most, of them came from what would probably today be seen as the right, though it&#8217;s sometimes hard to tell for sure.</p> <p>via <a href="http://volokh.com/posts/1245128749.shtml">The Volokh Conspiracy &#8211; Oddly Enough, Speech Restrictions in America Did Not Begin with the Modern Multiculturalist Left</a>.</p></blockquote> <p>This kind of historical look is absolutely critical in law, and in setting policy. It&#8217;s too easy to look at recent trends, or project current biases, on the law, and assume that the trend extends backwards in time in a similar fashion. This is a useful lesson to keep in mind whether one is look at law and technology, or Constitutional issues.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/06/universities-should-not-be-in-social.html">&#8220;Universities should not be in the social justice business&#8221;</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/evidence-based-approach-to-law-and.html"> An Evidence-Based Approach to Law and Science </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ccb03f3e-5911-45ff-9e83-2452c4cb7df5" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The Thomas file-sharing retrial" https://inpropriapersona.com/articles/the-thomas-file-sharing-retrial/ Fri, 19 Jun 2009 02:52:27 +0000 c83349890da5e2cc83a2782e624e6da9 <p><a href="http://www.flickr.com/photos/biwook/145765624/sizes/o/"><img class="alignright" title="&quot;A copyright will protect you from PIRATES&quot; from Flickr user Ioan Sameli, used under a Creative Commons Attribution-Share Alike 2.0 license" src="http://farm1.static.flickr.com/54/145765624_65d3eaf886_m.jpg" alt="" width="191" height="240" /></a>The almost two million dollar award is $80,000 per song. <em>$80,000. </em>Damages are supposed to be, well, damages, even if statutory. It strains belief that the record labels really were harmed to the tune of $80,000 per song, even based on wilful infringement.</p> <blockquote><p>The jury in the retrial of Ms. <a class="zem_slink" title="Capitol v. Thomas" rel="wikipedia" href="http://en.wikipedia.org/wiki/Capitol_v._Thomas">Jammie Thomas</a>-Rasset deliberated only a few hours today before concluding that she had willfully infringed the <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyrights</a> of 24 songs and awarding $1.92 million in <a class="zem_slink" title="Statutory damages" rel="wikipedia" href="http://en.wikipedia.org/wiki/Statutory_damages">statutory damages</a> ($80,000 per recording) to the record label plaintiffs. The verdict represents a huge increase over the $220,000 award in the original trial, which was overturned by the judge based on a faulty jury instruction pushed by the record labels.</p> <p>via <a href="http://www.eff.org/deeplinks/2009/06/record-labels-awarde">Record Labels&#8217; $1.9 Million Win in Thomas Retrial Constitutional? | Electronic Frontier Foundation</a>.</p></blockquote> <p>The EFF, in the article quoted above, questions whether such an award is even constitutional. I do not know enough about the arguments to have an answer on that, but I certainly have to doubt the real benefit to society of this kind of judgment &#8211; and I certainly question the level of actual damages.</p> <p>But an interesting, if disturbing, point of data to add to the debate.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/music-pirates-in-canada-american.html"> MUSIC PIRATES IN CANADA: American Publishers Say They Are Suffering by Copyright Violations There &#8211; Steps Taken for Redress </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=a23fe6fd-dc48-4e5f-b672-8f090409f904" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Technology and social media alter recruiting and job seeking" https://inpropriapersona.com/articles/technology-and-social-media-alter-recruiting/ Fri, 19 Jun 2009 00:54:45 +0000 0ddbb9c3287db5150bc35e3b093ad749 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 144px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/Image:NPR_News_logo.png"><img title="NPR News logo" src="http://upload.wikimedia.org/wikipedia/en/2/2d/NPR_News_logo.png" alt="NPR News logo" width="134" height="91" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/Image:NPR_News_logo.png">Wikipedia</a></dd> </dl> </div> </div> <p><a class="zem_slink" title="National Public Radio" rel="homepage" href="http://www.npr.org">NPR</a> brings us some useful new &#8220;rules of the road&#8221; for those seeking jobs in today&#8217;s economy &#8211; I think this goes for lawyers as much as anyone. Just remember, while technology has altered some parts of job seeking and recruitment, the broad essentials (a good resume, networking, research, preparation, interview skills) remain the same.</p> <blockquote><p>Hiring managers say they stay clear of candidates who make these digital job-seeking mistakes:</p> <ul> <li> Not having an updated profile, with recommendations, on sites like <a class="zem_slink" title="LinkedIn" rel="homepage" href="http://www.linkedin.com">LinkedIn</a> or similar sites relating to your line of work</li> <li> Having a husband-and-wife e-mail address</li> <li> Having an <a class="zem_slink" title="AOL" rel="homepage" href="http://www.aol.com">AOL</a> address. Some executives say those are very outdated.</li> <li> Not doing extensive research about the company, its culture and the position you&#8217;re applying for</li> <li> Not filing your resume digitally, even if you bring paper backups</li> <li> &#8220;Cold&#8221; e-mailing executives with whom you&#8217;ve never made a prior connection, either online or in person</li> <li> Asking an executive you&#8217;re hoping will hire you to be your &#8220;friend&#8221; on <a class="zem_slink" title="Facebook" rel="homepage" href="http://facebook.com">Facebook</a></li> </ul> <p>via <a href="http://www.npr.org/templates/story/story.php?storyId=105483848">Job Seekers Find New Rules Of Recruitment : NPR</a>.</p></blockquote> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.newswire.ca/en/releases/archive/June2009/10/c4773.html&amp;a=5516449&amp;rid=1c39157a-c50d-4b72-8fea-537f6683ba97&amp;e=d7461e63b76dd4e1d5cee6cd523a8d64"> Recruiters still on the hunt for top talent &#8211; and using social media to find it </a> (newswire.ca)</li> <li class="zemanta-article-ul-li"><a href="http://mashable.com/2009/02/19/laid-off-sites/">30+ Websites to Visit When You&#8217;re Laid Off</a> (mashable.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/social-media-for-law-students-and.html"> Social media for law students (and everyone else) </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/six-small-marketing-steps.html"> Six Small Marketing Steps </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=1c39157a-c50d-4b72-8fea-537f6683ba97" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Study on file sharing and copyright: weaker protections benefit society" https://inpropriapersona.com/articles/study-on-file-sharing-and-copyright-weaker-protections-benefit-society/ Thu, 18 Jun 2009 18:30:59 +0000 26ff62d8fe38ab7eadbc49ea8a75ff49 <p><a title="Capitol at Sunset" href="http://flickr.com/photos/9147703@N03/2034624215"><img class="alignright" src="http://farm3.static.flickr.com/2097/2034624215_15f83124b9_m.jpg" alt="" width="240" height="155" /></a></p> <blockquote><p>Economists Felix Oberholzer-Gee and Koleman Strumpf have just released a new Harvard Business School working paper called File Sharing and Copyright that raises some important points about file sharing, copyright, and the net benefits to society.</p> <p>via <a href="http://www.michaelgeist.ca/content/view/4062/125/">Michael Geist &#8211; Harvard Study Finds Weaker Copyright Protection Has Benefited Society</a>.</p></blockquote> <p>Mike Masnick of <a class="zem_slink" title="TechDirt" rel="homepage" href="http://www.techdirt.com">Techdirt</a> adds:</p> <blockquote><p>To understand the key points made by the paper, you need to understand the purpose of copyright &#8212; something that many people are confused about. It&#8217;s always been about creating <em>incentives</em> to create new works. Copyright maximalists and defenders of strengthening <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright laws</a> always suggest that without copyright, there would be much less creative output, because there would be much less incentive to create. History has shown that to be false. If you look back at the age when all creative output had to be registered to be covered by copyright, studies showed that only a very small fraction of content creators even bothered, because copyright wasn&#8217;t the incentive. It&#8217;s only now, when copyright is automatic, that people seem to think that copyright is somehow necessary.</p> <p>via <a href="http://techdirt.com/articles/20090617/1138185267.shtml">Yet Another Study Shows That Weaker Copyright Benefits Everyone | Techdirt</a>.</p></blockquote> <p>There are many who disagree, but the study appears to raise interesting issues regarding the benefit to society of copyright protections. As Mike Masnick writes above, copyright is about balancing benefits (incentives to create with the benefits of distribution). Thus, the <a href="http://www.law.cornell.edu/constitution/constitution.articlei.html">United States Constitution</a>, in granting to Congress the power to regulate patents and copyrights, says that the point is to <a name="science and useful arts"></a></p> <blockquote><p><a name="science and useful arts">To promote</a> the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.</p></blockquote> <p>In other words, although we consider copyrights and patents to be <em>property,</em> it is property that functions differently than many conceptualize. It explicitly lasts &#8220;for limited times,&#8221; for example (although other forms of property also may be limited &#8211; law students learn early on that property is a &#8220;bundle of rights,&#8221; not some kind of absolute grant).</p> <p>I am not convinced that <em>eliminating</em> copyright is the best approach, even if this study suggests that file sharing may actually benefit creators. Instead, I think perhaps a better balance of rights may be appropriate, and may even benefit creators (musicians, authors, etc.) over the current regime, which tends to benefit current <em>owners</em> of <a class="zem_slink" title="Intellectual property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_property">intellectual property</a> (labels, publishers, etc.). But I remain open to exactly what that balance should look like, and studies like this help to provide evidence for which approaches might be better than others.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=a3c5b5cf-0125-4f11-a99a-0993c3517d59" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Third-party copyright liability & freedom of speech" https://inpropriapersona.com/articles/third-party-copyright-liability-freedom-of-speech/ Thu, 18 Jun 2009 18:00:50 +0000 b8411cfd35c2adeecc8c47444d41d449 <p>Alfred C. Yen of <a class="zem_slink" title="Boston College (United States)" rel="geolocation" href="http://maps.google.com/maps?ll=42.3350833333,-71.1703611111&amp;spn=1.0,1.0&amp;q=42.3350833333,-71.1703611111%20%28Boston%20College%20%28United%20States%29%29&amp;t=h">Boston College</a> recently posted <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1407620">A First Amendment Perspective on the Construction of Third Party Copyright Liability</a> on <a class="zem_slink" title="Social Science Research Network" rel="wikipedia" href="http://en.wikipedia.org/wiki/Social_Science_Research_Network">SSRN</a>:</p> <blockquote><p>The relatively high risk of chill associated with third party <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright</a> liability suggests that the First Amendment is particularly relevant to the proper construction of this area of law. Indeed, First Amendment principles have a great deal to say about the use of <a class="zem_slink" title="Vicarious liability" rel="wikipedia" href="http://en.wikipedia.org/wiki/Vicarious_liability">vicarious liability</a>, contributory liability, and inducement, as well as the appropriateness of presumed damages in third party copyright liability.</p> <p>via <a href="http://lsolum.typepad.com/legaltheory/2009/06/alfred-c-yen-boston-college---law-school-has-posted-a-first-amendment-perspective-on-the-construction-of-third-party-copyr.html">Legal Theory Blog: Yen on Third Party Copyright Liability &amp; Freedom of Speech</a>.</p></blockquote> <p>As Chen points out, copyright has generally been treated as fully compatible with the First Amendment. This is true even though third party liability &#8212; that is, liability by a newspaper, an <a class="zem_slink" title="Internet service provider" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet_service_provider">Internet service provider</a>, or similar &#8212; has the potential to stifle speech without the same potential encouragement of speech potentially provided by copyright&#8217;s incentives to creation.</p> <p>In the article, Chen <em><a class="zem_slink" title="New York Times Co. v. Sullivan" rel="wikipedia" href="http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan">New York Times v. Sullivan</a> </em>and <em><a class="zem_slink" title="Gertz v. Robert Welch, Inc." rel="wikipedia" href="http://en.wikipedia.org/wiki/Gertz_v._Robert_Welch%2C_Inc.">Gertz v. Robert Welch</a></em> to provide insights into the potential <a class="zem_slink" title="Chilling effect (term)" rel="wikipedia" href="http://en.wikipedia.org/wiki/Chilling_effect_%28term%29">chilling effect</a> of third party liability on speech. Although he labels the article as &#8220;preliminary thoughts,&#8221; I think he is on to something.</p> <p><em>Recommended.</em></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/05/copyright-paradox-book-by-neil-netanel.html">Copyright&#8217;s Paradox: a book by Neil Netanel</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/06/social-science-research-network-ssrn.html">Social Science Research Network (SSRN)</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b6492f20-9bec-4da0-b524-7bbe758ead99" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "My Current Top 5 Favorite WordPress Plugins" https://inpropriapersona.com/articles/my-current-top-5-favorite-wordpress-plugins/ Tue, 16 Jun 2009 16:30:31 +0000 cd544ce3439cc4e37c00e02881611abf <p>There are many, many <a class="zem_slink" title="WordPress" rel="homepage" href="http://wordpress.org">WordPress</a> plugins out there (WordPress has instructions on <a href="http://codex.wordpress.org/Managing_Plugins">how to install plugins</a>). Here are my top recommendations for the blogging lawyer/law student:</p> <p><strong>1. <a class="zem_slink" title="BackType" rel="homepage" href="http://www.backtype.com/">BackType Connect</a> / <a class="zem_slink" title="IntenseDebate" rel="homepage" href="http://intensedebate.com">IntenseDebate</a></strong> &#8211; BackType incorporates <a class="zem_slink" title="Twitter" rel="homepage" href="http://twitter.com">Twitter</a> mentions into your comment stream.</p> <div style="margin: 1em; display: block;"> <div> <div style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignleft" style="width: 265px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/backtype"><img title="Image representing BackType as depicted in Cru..." src="http://www.crunchbase.com/assets/images/resized/0002/3718/23718v1-max-450x450.jpg" alt="Image representing BackType as depicted in Cru..." height="78" width="255"></a></dt> </dl> </div> </div> </div> </div> <p>It unfortunately is not yet compatible with another favorite plugin of mine called <a class="zem_slink" title="IntenseDebate" rel="homepage" href="http://intensedebate.com">IntenseDebate</a>, which adds comment threading and other useful tools to the default comment functionality in WordPress. It can also synchronize with the basic WordPress system, so it is easy to turn on and off.</p> <div style="margin: 1em; display: block;"> <div> <div style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/intensedebate"><img title="Image representing IntenseDebate as depicted i..." src="http://www.crunchbase.com/assets/images/resized/0000/4126/4126v3-max-450x450.png" alt="Image representing IntenseDebate as depicted i..." height="51" width="150"></a></dt> </dl> </div> </div> </div> </div> <p><strong>2. <a href="http://wordpress.org/extend/plugins/db-cache/">DB Cache</a> + <a href="http://wordpress.org/extend/plugins/hyper-cache/">Hyper Cache</a></strong> &#8211; DB Cache speeds up database access by caching common queries. Hyper Cache makes static versions of Web pages (like <a href="http://wordpress.org/extend/plugins/wp-super-cache/">WP Super Cache</a>, but I&#8217;ve found it more focused and streamlined in its approach). The combination excels at reducing server resource consumption and serving the maximum number of visitors with the minimum resource use.</p> <div style="margin: 1em; display: block;"> <div> <div style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignleft" style="width: 220px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/twitter"><img title="Image representing Twitter as depicted in Crun..." src="http://www.crunchbase.com/assets/images/resized/0000/2755/2755v2-max-450x450.png" alt="Image representing Twitter as depicted in Crun..." height="49" width="210"></a></dt> </dl> </div> </div> </div> </div> <p><strong>3. <a href="http://wordpress.org/extend/plugins/tweetable/">Tweetable</a></strong> &#8211; Automatically sends your new postings to <a href="http://twitter.com/">Twitter</a>, with the nice bonus of adding your blog name to each post. So, for example, my postings say &#8220;via in propria persona.&#8221; It also integrates Twitter into your WordPress dashboard, allowing you to easily Tweet from within WordPress.</p> <p><strong>4. <a href="http://wordpress.org/extend/plugins/wp-greet-box/">WP Greetbox</a></strong> &#8211; Adds a message automatically to the top of your postings to encourage visitors to subscribe, Stumble, etc. Visitors from <a class="zem_slink" title="Digg" rel="homepage" href="http://www.digg.com">Digg</a> get an encouragement to &#8220;Digg this,&#8221; those from <a class="zem_slink" title="StumbleUpon" rel="homepage" href="http://www.stumbleupon.com/">StumbleUpon</a> to &#8220;Stumble this,&#8221; etc.</p> <div style="margin: 1em; display: block;"> <div> <div style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 216px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/company/zemanta"><img title="Image representing Zemanta as depicted in Crun..." src="http://www.crunchbase.com/assets/images/resized/0001/6433/16433v1-max-450x450.png" alt="Image representing Zemanta as depicted in Crun..." height="73" width="206"></a></dt> </dl> </div> </div> </div> </div> <p><strong>5. <a class="zem_slink" title="Zemanta" rel="homepage" href="http://www.zemanta.com">Zemanta</a></strong> &#8211; While not perfect, this is a must-have plugin that makes it easy to add contextual information to your postings: pictures,&nbsp; tags, and related links.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.readwriteweb.com/archives/backtype_connect_plugs_in_to_wordpress.php"> Backtype Connect Plugs in to WordPress </a> (readwriteweb.com)</li> <li class="zemanta-article-ul-li"><a href="http://dbzer0.com/blog/of-wordpress-caches-and-fast-phps">Of WordPress Caches and Fast PHPs</a> (dbzer0.com)</li> <li class="zemanta-article-ul-li"><a href="http://openmode.ca/2009/02/recommended-wordpress-plugins-for-new-bloggers/">Recommended WordPress Plugins For New Bloggers</a> (openmode.ca)</li> <li class="zemanta-article-ul-li"><a href="http://www.smtusa.com/blog/posts/Top-Five-Wordpress-Plugins.html"> Top Five WordPress Plugins </a> (smtusa.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.blogherald.com/2009/04/27/5-wordpress-plugins-i-never-blog-without/"> 5 WordPress Plugins I Never Blog Without </a> (blogherald.com)</li> </ul> <div style="margin-top: 10px; height: 15px;" class="zemanta-pixie"><img style="border: medium none ; float: right;" class="zemanta-pixie-img" src="http://img.zemanta.com/pixy.gif?x-id=b8972b26-0283-47d6-8ab0-5d096bf4800a"><span class="zem-script pretty-attribution"><script type="text/javascript" src="http://static.zemanta.com/readside/loader.js" defer="defer"></script></span></div> "Narratives and evidence in the litigation of high-tech patents" https://inpropriapersona.com/articles/narratives-and-evidence-in-the-litigation-of-high-tech-patents/ Tue, 16 Jun 2009 14:30:28 +0000 e1752aa203707578efa0ae4c25089167 <div style="float:right;"><a title="micro software" href="http://flickr.com/photos/53493629@N00/2143598772"><img src="http://farm3.static.flickr.com/2331/2143598772_75d0108b94_m.jpg" alt="" /></a></div> <p><a href="http://law.scu.edu/faculty/profile/chien-colleen.cfm">Colleen Chien</a> has a paper in <a class="zem_slink" title="Social Science Research Network" rel="wikipedia" href="http://en.wikipedia.org/wiki/Social_Science_Research_Network">SSRN</a>, dated April of 2009, that explores the narrative of patents, from the epithet of &#8220;troll&#8221; applied to patent owners who seek only to leverage their patent through licensing, and not application, and including our rather romantic perception of an inventor:</p> <blockquote><p>While each patent dispute is unique, most fit the profile of one of a limited number of patent litigation stories. A dispute between an independent inventor and a large company, for instance, is often cast in &#8220;David v. Goliath&#8221; terms. When two large companies fight over <a class="zem_slink" title="Patent" rel="wikipedia" href="http://en.wikipedia.org/wiki/Patent">patents</a>, in contrast, they are said to be playing the &#8220;sport of kings.&#8221; Some corporations engage in &#8220;defensive patenting&#8221; in order to deter others from suing them. Patent licensing and enforcement entities who sue have been labeled &#8220;trolls.&#8221; Finally, observers of the patent system call the use of patent litigation to impose or exploit financial distress &#8220;patent predation.&#8221;</p> <p>These stories, routinely invoked by the press, advocates, and academics, shape public understanding of the patent system. In this Article, I describe, then match, these stories to data on patent litigations to determine which types of suits are most prevalent. I focus exclusively on the litigation of high-tech patents, covering hardware, software, and financial inventions, using data from the Stanford <a class="zem_slink" title="Intellectual property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_property">Intellectual Property</a> Clearinghouse for cases initiated in U.S. District Courts from January 2000 through March 2008.</p> <p>via <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319">SSRN &#8211; Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents by Colleen Chien</a>.</p></blockquote> <p>Recommended reading for anyone interested in how our society, including the press, speaks about the patent system</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090601/0007575076.shtml"> How Patents Are Harming Small Companies Too </a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.avc.com/a_vc/2009/02/how-patent-trolls-are-a-tax-on-innovation.html">How Patent Trolls Are A Tax On Innovation</a> (avc.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/strict-international-patent-laws-hurt.html">Strict International Patent Laws Hurt Developing Countries</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/do-patents-stimulate-r-investment-and.html">Do Patents Stimulate R&amp;D; Investment and Promote Growth?</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=07337f68-96bb-4c5a-90c6-422b2658bb15" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Is “free” a potentially workable business model for legal services?" https://inpropriapersona.com/articles/is-free-a-potentially-workable-business-model-for-legal-services/ Mon, 15 Jun 2009 13:30:32 +0000 bdc356f59cfd8c1c2dbb10e152d465dd <p><a href="http://www.flickr.com/photos/library_of_congress/2163911718/"><img class="alignright" title="Amateur wireless station (LOC)" src="http://farm3.static.flickr.com/2064/2163911718_0b1b87176d_m.jpg" alt="" width="240" height="174" /></a><a class="zem_slink" title="Chris Anderson" rel="homepage" href="http://www.thelongtail.com/about.html">Chris Anderson</a> wrote last year in <a href="http://www.wired.com">Wired</a>:</p> <blockquote><p>It&#8217;s now clear that practically everything Web technology touches starts down the path to gratis, at least as far as we consumers are concerned. Storage now joins bandwidth (<a class="zem_slink" title="YouTube" rel="homepage" href="http://www.youtube.com/">YouTube</a>: free) and processing power (<a class="zem_slink" title="Google" rel="homepage" href="http://google.com">Google</a>: free) in the race to the bottom. Basic economics tells us that in a competitive market, price falls to the marginal cost. There&#8217;s never been a more competitive market than the Internet, and every day the marginal cost of digital information comes closer to nothing.</p> <p>via <a href="http://www.wired.com/techbiz/it/magazine/16-03/ff_free?currentPage=2">Free! Why $0.00 Is the Future of Business</a>.</p></blockquote> <p>Jason Plant takes this idea and extends it to law firms: could a law firm really offer services for nothing?</p> <blockquote><p>Could we every get to the point that the knowledge systems in law firms become so good that a simple search could trawl thousands of precedents and cases in a firms KM (<a class="zem_slink" title="Knowledge management" rel="wikipedia" href="http://en.wikipedia.org/wiki/Knowledge_management">Knowledge Management</a>) and DM (Document Management) systems and bring you back the agreements that could be used with virtually no partner/associate billable time. Meaning very low costs that could be covered elsewhere (e.g. by adverts)?</p></blockquote> <p>via <a href="http://www.jasonplant.co.uk/2009/06/free-why-000-is-the-future-of-business/">Free! Why £0.00 Is the Future of Business</a>.</p> <p>A little more background on the concept provides more context. So, first Chris Anderson notes the powerful difference from the consumer perspective between free and cheap:</p> <blockquote><p>From the consumer&#8217;s perspective, though, there is a huge difference between cheap and free. Give a product away and it can go viral. Charge a single cent for it and you&#8217;re in an entirely different business, one of clawing and scratching for every customer. The psychology of &#8220;free&#8221; is powerful indeed, as any marketer will tell you.</p></blockquote> <p>Chris also points out that &#8220;free&#8221; does not mean that someone, somewhere isn&#8217;t making money &#8211; advertiser-support Web sites are a key example of this:</p> <blockquote><p>Traditionalists wring their hands about the &#8220;vaporization of value&#8221; and &#8220;demonetization&#8221; of entire industries. . . . But free is not quite as simple &#8211; or as stupid &#8211; as it sounds. Just because products are free doesn&#8217;t mean that someone, somewhere, isn&#8217;t making huge gobs of money. Google is the prime example of this. The monetary benefits of craigslist are enormous as well, but they&#8217;re distributed among its tens of thousands of users rather than funneled straight to <a class="zem_slink" title="Craig Newmark" rel="wikipedia" href="http://en.wikipedia.org/wiki/Craig_Newmark">Craig Newmark</a> Inc. To follow the money, you have to shift from a basic view of a market as a matching of two parties &#8211; buyers and sellers &#8211; to a broader sense of an ecosystem with many parties, only some of which exchange cash.</p></blockquote> <p>I do not believe that the lengthening economic recession has not proven any of this wrong, although more and more businesses are struggling to find ways to fund the very real costs that exist. Even if marginal costs per user are still dropping towards zero, servers, bandwidth, and storage still cost the provider real money. Yet, consumers appear even more price conscious today, and paying anything at all can seem like too much. The short-term challenge for many companies is to survive when third-party funders are harder to find, and customers are shy about paying for anything. Perhaps as consumers see companies with services they value go out of business, the massive gap between &#8220;free&#8221; and &#8220;cheap, but nor free&#8221; will lessen &#8211; but I wouldn&#8217;t count on it.</p> <p>Back in the legal world, however, it is more of a stretch to me to imagine how this would work. Certainly it is possible that Jason&#8217;s Knowledge Management services may well make simple legal queries cheaper. Even now, self-help legal Web sites have grown beyond what was ever available previously, and open-access legal search makes case law increasingly accessible to everyone (in a technical sense, anyway). Technology will increasingly make routine legal matters &#8211; wills, real estate conveyances, simple contracts &#8211; possible to handle without a lawyer, or without paying a lawyer a great deal of money.</p> <p>But while I suspect these services might <em>extend </em>legal access (&#8220;access to justice,&#8221; as it&#8217;s termed), I am not convinced that it will undercut the legal market as a whole, at least not in the short-to-medium term &#8211; not until human intelligence is significantly replaceable by artificial means. Thus, services based on human input, creativity, and analysis will be the last outpost of replaceability. For example, musicians have not been replaced. Humans still need to <em>create</em> original music. It is the <em>distribution</em> model that has changed.</p> <p>Distribution, as the music industry has found, is subject to technological replacement. Similarly, distribution of legal services is already undergoing changes, as &#8220;virtual law offices&#8221; emerge, and some services are even outsourced to other countries. Barriers &#8211; bar membership requirements for example &#8211; might make this challenging, but those are, in a sense, artificial barriers, as are copyright laws.</p> <p>This, musicians can still earn money for in-person concerts, where it is impossible to replicate the human element. The same will continue to be true for attorneys. But distribution of legal analysis, as with music, will change.</p> <p>There are key differences, though: music does not require modification based on context, while legal analysis is incredibly fact and jurisdiction specific. So distribution will get cheaper, but marginal costs &#8211; due to modifications and application &#8211; will not drop as much in law as in music. Still, &#8220;freemium&#8221; business models, or models where third parties pay, may well be extensible to legal services. For example, firms perhaps could provide simple wills and contracts for free, and charge for customization. Legal analysis in a broad sense could also be free &#8211; but you need to pay us to apply it to your facts (is this not what legal blogs are doing now?).</p> <p>So lawyers are safer than musicians in this sense &#8211; but nonetheless technology will revolutionize legal services, and law firms that adapt to the ideas behind &#8220;free&#8221; as a business model will survive and prosper &#8211; those that fail to adapt will not.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.slaw.ca/2009/06/13/the-winds-of-change-law-firms-lpo/">The Winds of Change: Law Firms &amp; LPO</a> (slaw.ca)</li> <li class="zemanta-article-ul-li"><a href="http://broadstuff.com/archives/1635-Freeconomics-2.0-or-how-Pay%21-is-the-New-Free%21.html">Freeconomics 2.0 &#8211; or how Pay! is the New Free!</a> (broadstuff.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.guardian.co.uk/music/musicblog/2009/mar/26/chris-anderson-freeconomics-royalties&amp;a=4007737&amp;rid=61c7363d-dc31-4255-9398-2026898447f3&amp;e=55bc9dc0a9a487a8cbddd059016e505e">Why &#8216;freeconomics&#8217; don&#8217;t add up</a> (guardian.co.uk)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/are-westlaw-and-lexisnexis-simply.html"> Are Westlaw and LexisNexis simply selling &#8220;free&#8221; information? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/open-access-law.html"> Open Access Law </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20100713231346/http://www.davidrisley.com:80/2009/02/01/economics-of-giving-it-away/">Economics of Giving It Away</a> (davidrisley.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=38fc2f87-b829-43f4-96f8-098bffa2ec36" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Internet access as a fundamental human right?" https://inpropriapersona.com/articles/internet-access-as-a-fundamental-human-right/ Sun, 14 Jun 2009 03:00:45 +0000 1b7b8f8cb73acc67f95cc276c10466ac <p><img class="alignright" title="Paris Exposition: Eiffel Tower and Celestial Globe, Paris, France, 1900" src="http://farm3.static.flickr.com/2127/2486026643_fa789d26ce_m.jpg" alt="" width="158" height="240" />On June 10th, France&#8217;s version of the Supreme Court <a title="Décision n° 2009-580 DC du 10 juin 2009" href="http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/2009/decisions-par-date/2009/2009-580-dc/decision-n-2009-580-dc-du-10-juin-2009.42666.html">struck down</a> parts of a new French law known as <a href="http://en.wikipedia.org/wiki/HADOPI_law">HADOPI</a>:</p> <blockquote><p>France&#8217;s highest court, the Constitutional Council, ruled that access to the internet is a &#8220;fundamental human right&#8221; this week in striking down a controversial &#8220;three strikes&#8221; anti-piracy law.</p> <p>via <a href="http://www.readwriteweb.com/archives/is_internet_access_a_fundamental_human_right_franc.php">Is Internet Access a Fundamental Human Right? France&#8217;s High Court Says Yes</a>.</p> </blockquote> <p>The decision, in paragraph 12, goes back to the 1789 <a href="http://en.wikipedia.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen">Declaration of the Rights of Man and Citizen</a> to say ground its decision in terms of free expression of thoughts and ideas:</p> <blockquote><p>La libre communication des pensées et des opinions est un des droits les plus précieux de l&#8217;homme : tout citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l&#8217;abus de cette liberté dans les cas déterminés par la loi. (The free expression of thoughts and of opinions is one of the most precious rights of humanity: all citizens  can speak, write, freely print, except in cases of abuse as determined by law.)</p> </blockquote> <p>Nonetheless, the court does not say that restrictions as in HADOPI are unconstitutional, since they also clearly point out (as the quote above says) that rights of free expression can be limited to prevent &#8220;abuse&#8221; &#8211; such as to prevent copyright infringement. However, in American legal terms, I might call this entire section &#8220;dicta,&#8221; but the <a class="zem_slink" title="Law of France" rel="wikipedia" href="http://en.wikipedia.org/wiki/Law_of_France">French civil law</a> system is different, of course. Despite connecting internet access to the fundamental right to freedom of speech and thought, this was not the basis for the court&#8217;s decision, although it certainly informed it.</p> <p>Instead, several other, perhaps equally important concepts, are at issue:</p> <ol> <li>The French legal system requires a presumption of innocence, and the legislature cannot change this. (See paragraph 17 and 18.)</p> </li> <li> <p>The sanction, after three reported incidents of infringement, involved cutting off Internet access. The court believed, essentially, that this was too great a sanction to allow a mere administrative agency the power to implement it. (This is clearly informed by an idea of Internet access facilitating free communication, and thus comes closest to making Internet access part of such a right). (See paragraph 16.)</p> </li> <li> <p>While the legislature can balance the right of privacy and the protection of intellectual property, entrusting a private entity with surveillance powers unconstitutionally interferes with the right to privacy. (See paragraphs 26 and 27.) As part of this, in paragraph 30, the court also forbid monitoring or interception of private communications in order to combat copyright infringement.</p> </li> </ol> <p>An interesting ruling that, while it does not quite equate Internet access to other human rights, certainly suggests that it might be a component in freedom of expression &#8211; certainly I can imagine a parallel to destroying a newspapers printing press, for example, as having a similar chilling effect on expression.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://volokh.com/posts/1244798471.shtml">France, the EU, and Internet Speech</a> (volokh.com)</li> <li class="zemanta-article-ul-li"><a href="http://fr.readwriteweb.com/2009/06/11/analyse/hadopi-dcision-du-conseil-constitutionnel-explique/">Hadopi : la décision du Conseil Constitutionnel expliquée…<br /> </a> (fr.readwriteweb.com)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/tech-policy/news/2009/06/french-court-savages-3-strikes-law-tosses-it-out.ars">French court savages three-strikes law, tosses it out </a> (arstechnica.com)</li> <li class="zemanta-article-ul-li"><a href="http://mashable.com/2009/06/11/france-three-strikes/"> France Rejects Three Strikes Law &#8230; For Now </a> (mashable.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=42402f20-a862-44e2-9243-66c14c72a34c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The current television business model will fail" https://inpropriapersona.com/articles/the-current-television-business-model-will-fail/ Sat, 13 Jun 2009 15:30:08 +0000 80c9dc0c1857db4960357df17af05c6f <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:Braun_HF_1.jpg"><img title="Braun HF 1, Germany, 1959" src="http://upload.wikimedia.org/wikipedia/commons/thumb/e/ee/Braun_HF_1.jpg/300px-Braun_HF_1.jpg" alt="Braun HF 1, Germany, 1959" width="150" height="196" /></a></dt> </dl> </div> </div> <p>Henry Blodget writes in the Silicon Valley Insider that:</p> <blockquote><p>Thus far, the TV industry has reacted to these changes [more ways to get simple entertainment at home, new ways to get TV content, fewer limitations on distribution] the way most people would: By trying to port its existing model to the new world and maintain its hold on power and money. This is why we&#8217;re getting so many ridiculous, consumer-unfriendly TV solutions, such as:</p> <ul> <li>Market-based control over what you can and can&#8217;t watch (thanks to contracts with local cable companies),</li> <li> No live-streaming of lots of popular video content despite the fact that this would grow the audience (same reason),</li> <li> Time-shifting of popular shows (don&#8217;t want to cannibalize more profitable TV audience)</li> <li> Hoarding of video libraries that could be easily available, watched, and monetized online</li> <li> Single episode downloads that expire after 24 hours</li> <li> $150/month &#8220;triple-play&#8221; solutions that come larded up with absurd taxes, fees, and service-charges, most of which go to pay for crap we don&#8217;t want.</li> </ul> <p>All these Band-Aid solutions will eventually fail. Why? Because eventually the cable-satellite-airwave monopoly over TV content in local markets will be circumvented by simple, global Internet distribution.</p> <p>via <a href="http://www.businessinsider.com/henry-blodget-analysts-begin-to-realize-that-theres-no-way-to-save-television-2009-6">Sorry, There&#8217;s No Way To Save The TV Business</a>.</p></blockquote> <p>I agree that the television industry is where newspapers were 10 years ago &#8211; in denial that they need to change their business model. They have tried, on occasion, to argue that skipping commercials is &#8220;stealing&#8221; and similar types of arguments. They are, as Henry points out, still making money &#8211; so they can afford to ignore the changes. I predict that, as inevitable as the death of their current business is, their attempt to legislate content protections is as inevitable (as <a title="Saving newspapers by changing the law" href="https://inpropriapersona.com/2009/05/saving-newspapers-by-changing-law.html">newspapers have tried to do).</a></p> <p>Thus, the current loose tolerance for Bittorrent sharing will evaporate in favor of dracionian enforcement attempts like the <a class="zem_slink" title="Motion Picture Association of America" rel="wikipedia" href="http://en.wikipedia.org/wiki/Motion_Picture_Association_of_America">MPAA</a> and <a class="zem_slink" title="RIAA, Recording Industry Association of America" rel="crunchbase" href="http://www.crunchbase.com/company/riaa-recording-industry-association-of-america">RIAA</a>. Rhetoric will escalate, and we&#8217;ll all (temporarily) become &#8220;pirates.&#8221; Hopefully services like <a class="zem_slink" title="hulu" rel="homepage" href="http://www.hulu.com/">Hulu</a> will take up the slack quickly enough to provide alternatives before this happens &#8211; but don&#8217;t count on it.</p> <p>Still, as I said earlier <a title="Journalism and ethical blogging" href="www.inpropriapersona.com/2009/06/journalism-and-ethical-blogging/">about newspapers</a>, television production, like journalism, will not die. Only the distribution model will change. Those who adapt will thrive in the long term. So adapt now and succeed while your competitors fail.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://gizmodo.com/5272768/would-you-ditch-cable-for-hulu"> Would You Ditch Cable For Hulu? [Question Of The Day] </a> (gizmodo.com)</li> <li class="zemanta-article-ul-li"><a href="http://blogs.wsj.com/digits/2009/05/28/nbcs-zucker-on-hulu-and-itunes/?mod=rss_WSJBlog"> NBC&#8217;s Zucker on Hulu and iTunes </a> (blogs.wsj.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/05/new-vs-old-media.html">New vs. Old Media</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.tvsquad.com/2009/05/23/survey-says-online-television-is-a-fad/"> Survey says: online television is a fad </a> (tvsquad.com)</li> <li class="zemanta-article-ul-li"><a href="http://mymediamusings.com/2009/02/24/cable-companies-try-to-get-some-online-pie/">Cable Companies Try to Get Some Online Pie</a> (mymediamusings.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=5141c9f6-9001-42f9-b43b-4ca99127d755" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "National Rifle Association of America v. City of Chicago" https://inpropriapersona.com/news/2009/national-rifle-association-of-america-v-city-of-chicago/ Sat, 13 Jun 2009 00:06:55 +0000 f29cdcd7ca522ac7930d597b57bb5874 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/95118988@N00/299142492"><img title="United States Supreme Court Building, East Side" src="http://farm1.static.flickr.com/107/299142492_79c4a3f051_m.jpg" alt="United States Supreme Court Building, East Side" width="240" height="185" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/95118988@N00/299142492">Jeff Kubina</a> via Flickr</dd> </dl> </div> </div> <p>Sandy Levison recommends reading a <a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/06/7th-ca-nra-6-2-09.pdf">recent 7th Circuit decision</a>:</p> <blockquote><p>Anyone interested in seeing how a very smart judge can write the equivalent of a treatise in nine pages should read Frank Easterbrook&#8217;s <a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/06/7th-ca-nra-6-2-09.pdf">opinion</a> in <em>National Rifle Association of America v. City of Chicago</em>. It is a truly remarkable performance.</p></blockquote> <p>via <a href="http://balkin.blogspot.com/2009/06/best-nine-page-opinion-ever-written.html">Balkinization</a>.</p> <p>The case was focused on whether <a href="http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller"><em>Heller</em></a> &#8211; a recent Supreme Court case striking down restrictions on gun possession in D.C. (a federal territory) &#8211; could be applied to state law:</p> <blockquote><p><span class="rss:item">The ostensible (and actual) issue before the Court (a pane of Easterbrook, Posner, and Bauer) is whether <span style="font-style: italic;">Heller </span>should be read as incorporating the Second Amendment against states (or, in this case, the City of Chicago). One Circuit, the Second, has held no, in an <a href="http://homepages.nyu.edu/%7Ejmm257/000-decision.pdf">opinion</a> joined by Judge Sotomayor. Another, the Ninth, did <a href="http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf">hold</a> that the Second Amendment was incorporated.</span></p></blockquote> <p><span class="rss:item">The Seventh Circuit rejected the NRA argument, and said the Second Amendment does not apply to state law. Grounding his argument in 19th-century precedent, Easterbrook wrote that, unless the Supreme Court says otherwise, even modern case law says lower courts must follow the Supreme Court:</span></p> <blockquote><p><span class="rss:item">Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. </span></p></blockquote> <p><span class="rss:item"> Further responding to the NRA&#8217;s argument that older cases did not directly address new arguments they were now making, Easterbrook said:</span></p> <blockquote><p><span class="rss:item">If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.</span></p></blockquote> <p><span class="rss:item">Another interesting NRA argument looked back to the famous <em>Blackstone</em> treatise, a foundational legal text describing English law &#8211; the underpinnings of the American common law:</span></p> <blockquote><p><span class="rss:item">[The NRA&#8217;s] reliance on William Blackstone, 1 <em>Commentaries on the Laws of England</em> *123–24, for the proposition that the right to keep and bear arms is &#8220;deeply rooted&#8221; not only slights the fact that Blackstone was discussing the law of another nation but also overlooks the reality that Blackstone discussed arms-bearing as a <em>political</em> rather than a <em>constitutional</em> right. The United Kingdom does not have a constitution that prevents Parliament and the Queen from matching laws to current social and economic circumstances, as the people and their representatives understand them. It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868. See Nicholas Quinn Rosenkranz, <em>Condorcet and the Constitution</em>, 59 Stan. L. Rev. 1281 (2007).<br /> </span></p></blockquote> <p><span class="rss:item">He approaches the end with a nod to liberarian ideals (even citing Robert Nozick) and the importance of state&#8217;s rights:</span></p> <blockquote><p><span class="rss:item">But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. . . .  <em>Crist v. Bretz</em>, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only &#8220;fundamental&#8221; liberties should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, <em><a class="zem_slink" title="Anarchy, State, and Utopia" rel="amazon" href="http://www.amazon.com/Anarchy-State-Utopia-Robert-Nozick/dp/0465002706%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0465002706">Anarchy, State, and Utopia</a></em> (1974). </span></p></blockquote> <p>His final point puts federalism and the Supreme Court first:</p> <blockquote><p><span class="rss:item">Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to &#8220;incorporate&#8221; the second amendment are for the Justices rather than a court of appeals.<br /> </span></p></blockquote> <p><span class="rss:item">I&#8217;m not sure I completely agree with all the public-policy implications, although the opinion is quite convincing and very well done. I recommend you <a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/06/7th-ca-nra-6-2-09.pdf">read it</a>, along with Sandy Levinson&#8217;s <a href="http://balkin.blogspot.com/2009/06/best-nine-page-opinion-ever-written.html">more complete analysis</a>.<br /> </span></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://althouse.blogspot.com/2009/06/federalism-is-older-and-more-deeply.html"> &#8220;Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.&#8221; </a> (althouse.blogspot.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=1fb0611e-d8c2-443d-bd1d-cea935ebc520" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Texas effectively denies open access to state law" https://inpropriapersona.com/articles/texas-effectively-denies-open-access-to-state-law/ Fri, 12 Jun 2009 22:13:54 +0000 2b17324d4112ef11fa4f9eef9f1648f2 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/84992687@N00/3320757411"><img title="texas our texas" src="http://farm4.static.flickr.com/3571/3320757411_21924f04fa_m.jpg" alt="texas our texas" width="240" height="212" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/84992687@N00/3320757411">jmtimages</a> via Flickr</dd> </dl> </div> </div> <p>According to the <a title="Don’t Mess With Texas, When It Comes to Memorandum Opinions Anyway" href="http://advocatesstudio.wordpress.com/2009/06/12/dont-mess-with-texas-when-it-comes-to-memorandum-opinions-anyway/#comment-619">Advocate&#8217;s Studio</a>, a recent change to the Texas Rule of Appellate Procedure gives &#8220;memorandum&#8221; opinions full precedential value &#8211; but those opinions are currently only accessible through the very expensive <a class="zem_slink" title="Westlaw" rel="wikipedia" href="http://en.wikipedia.org/wiki/Westlaw">Westlaw</a> or <a class="zem_slink" title="LexisNexis" rel="wikipedia" href="http://en.wikipedia.org/wiki/LexisNexis">LexisNexis</a>:</p> <blockquote><p>Hey, Texas! What’s up with this move to lock the law behind a very expensive toll booth? If the <a class="zem_slink" title="Texas Legislature" rel="homepage" href="http://www.capitol.state.tx.us">Texas legislature</a> insists that memorandum opinions are binding, then the Texas legislature better figure out a way to open access to them. In an age when information is moving steadily towards free and open source, this short-sighted procedural move seems more than a little backward. I suppose the next move is to require lawyers to ride to court on buckboard.</p></blockquote> <p>The general trend, building on similar approaches in scientific publishing as well as open-source software, has been to open up access to legal opinions. The goal is to make the law &#8211; an absolutely fundamental part of society &#8211; more accessible to the public. It is, to borrow from a rather different context, rather like allowing people to read the Bible in their own language, rather than requiring to go to a priest trained in Latin.</p> <p>Hopefully, the Texas example is the exception to the trend away from proprietary lock-in, and not an indication that we are moving backwards.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/04/open-source-open-access-and-open.html">Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/open-access-law.html">Open Access Law</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=50399aba-4501-4f32-9ab8-3a88142282f1" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "A manifesto for the new Web from building43" https://inpropriapersona.com/articles/a-manifesto-for-the-new-web-from-building43/ Fri, 12 Jun 2009 12:45:25 +0000 bfb6484885278cac4080647b99fa4ae1 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/35034363287@N01/3616910230"><img title="Screen Capture of Building43" src="http://farm3.static.flickr.com/2435/3616910230_6b925229e7_m.jpg" alt="Screen Capture of Building43" width="240" height="108" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/35034363287@N01/3616910230">Robert Scoble</a> via Flickr</dd> </dl> </div> </div> <p><a href="http://www.building43.com">Building43</a> is the latest <a href="http://scobleizer.com/">Robert Scoble</a>/<a href="http://www.rackspace.com">Rackspace</a> venture, a kind of online community space to develop the future of the Web. (Or something like that.) I am typically suspicious of grand ventures by luminaries &#8211; so often they fail to live up to expectations. Still, I&#8217;m willing to give it a chance &#8211; and, hopefully, to translate some of its message to the legal world.</p> <p>Scoble&#8217;s &#8220;<a href="http://web.archive.org/web/20130613233600/http://www.building43.com/blogs/2009/06/11/building43-manifesto/">manifesto</a>&#8221; is a good place to start. It&#8217;s a 10-point list that many who seek to become a destination point on today&#8217;s Web would do well to consider, whether they are attorneys or developers:</p> <blockquote><p>1. Live in real time.</p> <p>2. Build on other people’s technology.</p> <p>3. This is an industry-wide effort.</p> <p>4. Teach, don’t just hype.</p> <p>5. We’re a decentralized community.</p> <p>6. Be open.</p> <p>7. Link to the best.</p> <p>8. Be two-way in everything we do.</p> <p>9. Build a community of friends.</p> <p>10. Stay up to date.</p></blockquote> <p>I&#8217;ll be keeping an eye on the site and, if useful ideas and approaches emerge, I&#8217;ll pass them on &#8211; with a law &amp; technology spin, of course.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=e4104591-b398-4416-88c5-4d2da61c2d56" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Business method patents rejected in Canada" https://inpropriapersona.com/articles/business-method-patents-rejected-in-canada/ Fri, 12 Jun 2009 10:42:12 +0000 5697f9c938e838ff8b39bb4b9dcaa5f2 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 210px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/amazon-ec2"><img title="Image representing Amazon EC2 as depicted in C..." src="http://www.crunchbase.com/assets/images/resized/0000/3898/3898v1-max-450x450.jpg" alt="Image representing Amazon EC2 as depicted in C..." width="200" height="89" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p>Michael Geist explains the current status of business method patents in Canada where, so far, they have been firmly rejected &#8211; unlike in the United States:</p> <blockquote><p>Most people think of patents in terms of legal protection for new technological inventions. There is another form of patent, however. A business method patent is one awarded for a special technique for doing business such as improvements to a company&#8217;s accounting or sales department.</p> <p>Business method patents have proven very controversial in the United States, which has been home to dozens of lawsuits over their validity. By contrast, Canada has tried to craft a balance that neither embraces nor completely rejects them. That policy may be changing, however, as the Canadian Patent Appeal Board recently<a title="The CIPO decision" href="http://patents.ic.gc.ca/opic-cipo/comdec/eng/decision/1290/summary.html?query=(amazon+%3Cin%3E+cnote+%3COR%3E+amazon+%3Cin%3E+entext+%3COR%3E+amazon+%3Cin%3E+frtext)&amp;start=1&amp;num=10"> denied an appeal</a> by Amazon.com over a &#8220;one-click&#8221; ordering system patent with strong language that challenged the notion that business method patents are patentable under Canadian law.</p> <p>via <a href="http://www.michaelgeist.ca/content/view/4006/159/">Michael Geist &#8211; Panel Strikes Blow Against Business Method Patents in Canada</a>.</p></blockquote> <p>Although <a title="In re Bilski" href="http://en.wikipedia.org/wiki/In_re_Bilski">recent rulings</a> in the U.S. have cast doubts on business method patents here, it is interesting to see their fate in a neighbouring country with a related &#8211; but quite distinct &#8211; legal system.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.thestar.com/article/639694&amp;a=5167270&amp;rid=96b97897-a3c2-434a-a958-ec13c7d92612&amp;e=d74c07e7f62d983e8753b2157a682000"> Two clicks and you&#8217;re out, panel rules </a> (thestar.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/in-re-bilski-revisited-business-method-patents-to-go-before-the-supreme-court/"> In re Bilski Revisited: Business-Method Patents to Go Before the Supreme Court </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090606/1138105151.shtml"> Canadian Patent Office Rejects Software And Business Model Patents </a> (techdirt.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=85d3683e-8c1b-4a14-9500-0a7f4bb484fe" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Secret evidence is incompatible with the rule of law" https://inpropriapersona.com/articles/secret-evidence-is-incompatible-with-the-rule-of-law/ Thu, 11 Jun 2009 18:15:51 +0000 b95fee4fc569a14daeaa3fd860bb9859 <p>Two recent rulings bring up the question of &#8220;secret evidence,&#8221; that is, evidence used against a defendant that (for whatever reason) is not revealed to the defense, but is nevertheless used against them. Certainly, the issues can be complicated, as the U.S. government is discovering while attempting to balance national security interests (including the potential to compromise sources, methods of interrogation, and so on) with successful convictions. The U.K. government also struggles with the issue as it seeks to prevent potential terrorist attacks.</p> <p>The first ruling came in federal court in the United States as a district court judge ruled against the Administration&#8217;s attempt to restrict defense access to information:</p> <blockquote><p>Senior U.S. District Judge Thomas F. Hogan has turned down a request by the Obama Administration to restrict lawyers&#8217; access &#8211; in virtually all remaining Guantanamo Bay cases &#8211; to the files the Administration’s detention task force is assembling on every prisoner remaining at the Navy prison in Cuba.</p> <p>via <a title="Government rebuffed on detainee files" href="http://www.scotusblog.com/wp/government-rebuffed-on-detainee-files/">SCOTUSblog</a>.</p></blockquote> <p>The second ruling is from the U.K., and came down as a unanimous decision by nine law lords restricting the use of secret evidence in so-called &#8220;control orders&#8221; (a form of preventative house arrest):</p> <blockquote><p>The men, who have been held under virtual house arrest under the Government’s control order regime, won the unanimous backing of a panel of nine law lords, on the grounds that the suspects did not know what they were accused of or what evidence was being used against them.</p> <p>via the <a title="Disarray over terror control orders after law lords ruling on secret evidence" href="http://www.timesonline.co.uk/tol/news/uk/article6469431.ece">Times Online</a>.</p></blockquote> <p>The U.K. government argues that they have processes in place to prevent abuse of the system, but that the sensitive nature of the evidence, combined with the seriousness of the terrorist threat, justifies the use of secret evidence.</p> <p>The law lords disagreed:</p> <blockquote><p>Lord Phillips of Worth Matravers, the senior law lord, said: &#8220;A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.&#8221;</p> <p>The eight other lords agreed. &#8220;The principle that the accused has a right to know what is being alleged against him has a long pedigree. &#8230; The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him,&#8221; Lord Hope said.</p></blockquote> <p>This is exactly my beginning position. As a foundational proposition, a justice system based on the rule of law is incompatible with the use of secret evidence. Such evidence undermines our adversarial legal process, including fundamental rights like due process and the right to confront witnesses. Similar abuses of the English legal system, on which the American system in based, led directly to the Bill of Rights in 1789, and contributed to the desire of American colonists to separate from England.</p> <p>Nonetheless, despite this, I might be convinced that such evidence could have an application in the investigatory process, or even in short-term preventative detention to prevent imminent threats or to gather evidence that can be used in court. But beyond that limited use, secret evidence provides the executive branch with too much power, a position both liberals and conservatives can, I believe, understand and support &#8212; despite the tendency for each side to oppose executive power only when the other side is in power.</p> <p>I can also envision a potential system that seeks to limit the exposure of such evidence by restricting who can see it and evaluate it. Evidence does not need to be made available openly to the public (although this is the ideal, since it provides the greatest protection against abuse &#8211; but then again, the public does not always use such information responsibly). But evidence must be revealed at least to the defense so that a proper case can be mounted and questions can be asked. This is how our adversarial system functions and, while imperfect, the system is better than alternatives.</p> <p>Perhaps a military commission system is the right way to balance these concerns, since our traditional system is simply not set up to handle the limited release of sensitive information to defense counsel and no one else. Certainly I have grown to have great respect for the ability of military lawyers to act as defense counsel, despite the negative impact on careers that occurred in the last 8 years to those who did so. A lawyer has an ethical duty to the law and to his or her client. And military attorneys have more than lived up to this ethical duty.</p> <p>Regardless of the approach, I believe that while the use of secret evidence may be acceptable initially (as part of an investigation or short-term detention while more evidence is gathered), the defense needs access to this evidence. Without it, any trial or legal process is simply unfair.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://news.bbc.co.uk/2/hi/in_depth/8092763.stm"> UK terror suspects win legal battle </a> (news.bbc.co.uk)</li> <li class="zemanta-article-ul-li"><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1026410">The Case Against Secret Evidence</a> (SSRN)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=8ff1aae4-37f2-4f81-8123-3dd4561a8e7c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Professionalism and pharmacist protection laws" https://inpropriapersona.com/articles/prawfsblawg-principle-politics-and-pharmacist-protection-laws/ Thu, 11 Jun 2009 01:32:39 +0000 8fa6e5feb7c9f83e97df28ce4638e831 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 190px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/32570177@N06/3538205663"><img title="Americas' Health Care Crisis" src="http://farm3.static.flickr.com/2463/3538205663_1c49e3ff64_m.jpg" alt="Americas' Health Care Crisis" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/32570177@N06/3538205663">prudencebrown121</a> via Flickr</dd> </dl> </div> </div> <p>Dave Fagundes writes at PrawfsBlawg about &#8220;<a href="http://www.ncsl.org/IssuesResearch/Health/PharmacistConscienceClausesLawsandLegislation/tabid/14380/Default.aspx">pharmacist protection laws</a>&#8220;:</p> <blockquote><p>The logic of these laws is that they avoid forcing pharmacists into a choice between their religious convictions and their professional obligations, and at first blush that seems appealing. Yet something seems peculiarly narrow about these laws, because they don’t mandate a general exception for conscientious objection to workplace duties, but only a narrow one for a particular kind of health care professional.</p></blockquote> <p>via <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/06/principle-politics-and-pharmacist-protection-laws.html">PrawfsBlawg: Principle, Politics, and Pharmacist Protection Laws</a>.</p> <p><a class="zem_olink" href="http://r.zemanta.com/?u=http%3A/abcnews.go.com/WhatWouldYouDo/story%3Fid%3D7021986%26page%3D1&amp;a=3652915&amp;rid=54ebd034-1549-4013-bc9e-03964cccc36d&amp;e=45dfdb5d059772674bcf691e89a87f59">He raises three questions related to these laws: (1) &#8220;Why should we be concerned only about religious objections to dispensing pharmaceuticals related to reproduction?&#8221; ; (2) &#8220;why should only professionals benefit from this protection?&#8221;; and  (3) &#8220;why should we be concerned only with religious objections, as opposed to other conscience-based ones?&#8221;</a></p> <p>All excellent questions, I think, that point out weaknesses in the philosophical underpinnings of such laws. Nonetheless, they may still be useful in practical terms to implement a kind of political compromise position. That is, since enough people object to providing contraception or similar medications to block laws that otherwise facilitate access, a compromise position would be to allow for pharmacists who object to refuse to fill them without risking termination by their employer.</p> <p>On a personal level, I find his question about why we provide protection for professionals like pharmacists but <em>not</em> for checkout clerks processing the transaction. To my mind, entry to a profession brings with it <em>higher</em> standards of conduct and places greater burdens on the professional. In other words, in return for greater pay, greater social standing, etc., a professional must sacrifice &#8211; to some extent, at least &#8211; their personal belief system in favor of the profession&#8217;s code of behavior. This, doctors must treat patients, regardless of whether they are mass murderers or the President of the United States. Defense lawyers must mount a vigorous defense, regardless of whether they feel their client is guilty or not. The overall societal benefit of such professional standards of conduct outweighs individual objections.</p> <p>My gut says: pharmacists should also adhere to professional standards that may require individual morality to be set aside in favor of professional standards of conduct (of course, such standards must be defensible and socially beneficial, or they should be opposed and changed). I would rather allow clerks to decline to process a transanction (forcing the pharmacist to ring it up) that permit pharmacists to do so.</p> <p>My head says: such laws are a potentially practical solution to gettings things done in our society today. And it is impractical to permit clerks a moral objection clause for processing transactions.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=025be8b6-746a-48ff-9374-974bc1802d20" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The dual nature of the U.S. Constitution" https://inpropriapersona.com/articles/the-dual-nature-of-the-us-constitution/ Wed, 10 Jun 2009 20:15:08 +0000 491624d7a16ca1c6b839acb6707df3da <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/File:Constitution_Pg1of4_AC.jpg"><img title="First page of Constitution of the United States" src="http://upload.wikimedia.org/wikipedia/commons/thumb/1/19/Constitution_Pg1of4_AC.jpg/300px-Constitution_Pg1of4_AC.jpg" alt="First page of Constitution of the United States" width="300" height="363" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/File:Constitution_Pg1of4_AC.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>Sandy Levinson has an interesting response to &#8220;<span class="rss:item">It Is a <a class="zem_slink" title="United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/United_States_Constitution">Constitution</a> We Are Expounding,&#8221; subtitled &#8220;Collected Writings on Interpreting Our Founding Document,&#8221; from the <a class="zem_slink" title="American Constitution Society for Law and Policy" rel="homepage" href="http://www.acslaw.org/">American Constitution Society</a>:<br /> </span></p> <blockquote><p>Put to one side that the Constitution has not &#8220;endured for 220 years,&#8221; unless one recognizes, as Joyce Appleby once put it, that it was &#8220;in the shop&#8221; over a decade in the 1860s, not least because the bad brakes and slick tires built into the original 1787 Constitution in fact helped drive us over a cliff, as Mark Graber has demonstrated in his magnificent book on <a class="zem_slink" title="Dred Scott" rel="wikipedia" href="http://en.wikipedia.org/wiki/Dred_Scott">Dred Scott</a>. The more important problem is that the Constitution does most certainly does not consist only of &#8220;majestic generalities.&#8221; The &#8220;majestic generality&#8221; Constitution is only one of our two Constitutions. I have no problem with the <a class="zem_slink" title="Equal Protection Clause" rel="wikipedia" href="http://en.wikipedia.org/wiki/Equal_Protection_Clause">Equal Protection Clause</a>, the <a class="zem_slink" title="Due process" rel="wikipedia" href="http://en.wikipedia.org/wiki/Due_process">Due Process Clause</a>, or the other such &#8220;open-textured&#8221; parts of the Constitution. Rather, it is the other Constitution that the ACS, alas, continues to prefer to ignore, the parts &#8211; I won&#8217;t bother rehearsing all of them once more &#8211; that are not really subject to &#8220;adaptation&#8221; in order to achieve a better society. It is so much more fun to &#8220;expound&#8221; on the &#8220;adaptable&#8221; Constitution and simply pretend that the &#8220;hard-wired&#8221; one can always be &#8220;worked around.&#8221; But what if it can&#8217;t? What if there is a gorilla (or rattlesnake) in the room?</p></blockquote> <p>via <a href="http://balkin.blogspot.com/2009/06/our-two-constitutions.html">Balkinization</a>.</p> <p>An interesting perspective. I hadn&#8217;t quite thought of the Constitution this way before &#8211; as essentially two kinds of document, one detailed and specific, the other broad and general &#8211; but it helps to frame many of the conflicts and issues that emerge in Constitutional law.</p> <p>Different readers tend to focus on different aspects, meaning that castigating a judge for &#8220;activism&#8221; who is interpreting a general Constitional issue may be missing the point entirely &#8211; interpetation is exactly what is required when the law is unclear. But calling a judge &#8220;activist&#8221; who changes part of the &#8220;other&#8221; Constitution &#8211; parts that are specific and detailed &#8211; may be spot on. (Although even these areas are rarely completely clear and fixed, since at a certain level language changes and evolves, and meaning is not completely fixed &#8211; nevertheless, the distinction makes sense.)</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=dd744448-f2c7-431f-9978-39df3481f14a" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Promises, promises: the MBA oath" https://inpropriapersona.com/articles/promises-promises-the-mba-oath/ Mon, 08 Jun 2009 23:42:02 +0000 249291004b101eb70666712678673c92 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:Hippocrates_rubens.jpg"><img title="Engraving of Hippocrates by Peter Paul Rubens,..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/3/32/Hippocrates_rubens.jpg/300px-Hippocrates_rubens.jpg" alt="Engraving of Hippocrates by Peter Paul Rubens,..." width="300" height="420" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/Image:Hippocrates_rubens.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>An interesting new drive for greater ethical behaviour in the business environment:</p> <blockquote><p>The <a class="zem_slink" title="Ethics" rel="wikipedia" href="http://en.wikipedia.org/wiki/Ethics">ethics</a> of business were on the minds of a group of students who&#8217;ve just received their master&#8217;s degrees from <a class="zem_slink" title="Harvard Business School" rel="geolocation" href="http://maps.google.com/maps?ll=42.36722,-71.12253&amp;spn=1.0,1.0&amp;q=42.36722,-71.12253%20%28Harvard%20Business%20School%29&amp;t=h">Harvard Business School</a>. They&#8217;ve mounted a campaign to have graduating students take what they call the &#8220;<a class="zem_slink" title="Master of Business Administration" rel="wikipedia" href="http://en.wikipedia.org/wiki/Master_of_Business_Administration">MBA</a> Oath.&#8221; It&#8217;s modeled after the medical profession&#8217;s <a class="zem_slink" title="Hippocratic Oath" rel="wikipedia" href="http://en.wikipedia.org/wiki/Hippocratic_Oath">Hippocratic oath</a>.</p> <p>via <a href="http://www.npr.org/templates/story/story.php?storyId=105077045&amp;ft=1&amp;f=1013">MBA &#8216;Hippocratic&#8217; Oath Aims For Ethical Business : NPR</a>.</p></blockquote> <p><em><a class="zem_slink" title="The Economist" rel="homepage" href="http://www.economist.com/">The Economist</a></em> has a more detailed article discussing the oath:</p> <blockquote><p>They did not actually say that &#8220;greed is not good,&#8221; but the oath taken on June 3rd by more than 400 students graduating from Harvard Business School amounted to much the same thing. At an unofficial ceremony the day before they received their MBAs, the students promised they would, among other things, &#8220;serve the greater good,&#8221; &#8220;act with the utmost integrity&#8221; and guard against &#8220;decisions and behaviour that advance my own narrow ambitions, but harm the enterprise and the societies it serves.&#8221;</p> <p>via <a href="http://www.economist.com/business/displaystory.cfm?story_id=13788418">A Hippocratic oath for managers: Forswearing greed | The Economist</a>.</p></blockquote> <p>The medical profession already has such an oath, along with an enforceable code of ethics (unethical behavior will get your <a class="zem_slink" title="Medical license" rel="wikipedia" href="http://en.wikipedia.org/wiki/Medical_license">medical license</a> pulled). The legal profession, as far as I know, has no oath, but has a very strict set of ethical rules that vary by state &#8211; violate the codes of <a class="zem_slink" title="Professional responsibility" rel="wikipedia" href="http://en.wikipedia.org/wiki/Professional_responsibility">professional responsibility</a>, and you may be disbarred or suspended from practice.</p> <p>To my mind, it is this enforcement component that gives ethical guidelines their teeth. Will an oath, however well-intentioned, actually result in better behavior absent any enforcement? I suspect not, although I do nevertheless think &#8211; in the spirit of <a href="https://inpropriapersona.com/2009/06/evolution-vs-revolution-overcoming-resistance-to-change/">evolution vs. revolution</a> &#8211; that this is nevertheless a positive step toward more responsible business behavior.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://blogs.harvardbusiness.org/cs/2009/06/why_we_created_the_mba_oath.html"> Why We Created the MBA Oath </a> (blogs.harvardbusiness.org)</li> <li class="zemanta-article-ul-li"><a href="http://www.socialmediatoday.com/SMC/99556"> Trust and The MBA&#8230; The MBA oath trivializes business ethics </a> (socialmediatoday.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www10.nytimes.com/2009/05/30/business/30oath.html%3F_r%3D5%26partner%3Drss%26amp%3Bemc%3Drss&amp;a=5293803&amp;rid=c3c9deb7-30a8-412e-bb18-d1344cf9c8b7&amp;e=2cf42b96d79a0f82c9f959c1bad2e090"> A Promise to Be Ethical in an Era of Immorality </a> (nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/06/journalism-and-ethical-blogging/"> Journalism and Ethical Blogging </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f229f75d-064a-4b4c-930f-12e4688e6272" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Is the crisis in attorney hiring due to the failure of legal education?" https://inpropriapersona.com/articles/is-the-crisis-in-attorney-hiring-due-to-the-failure-of-legal-education/ Sun, 07 Jun 2009 16:35:56 +0000 6a606b5eada0afb42294e4dab6ad8f7e <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/62481346@N00/2705052763"><img title="Harvard Law School Langdell Hall" src="http://farm4.static.flickr.com/3048/2705052763_6468f5585b_m.jpg" alt="Harvard Law School Langdell Hall" width="240" height="180" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/62481346@N00/2705052763">ZaNiaC</a> via Flickr</dd> </dl> </div> </div> <p>Jordan Furlong at Slaw.ca suggests that the current trend of big firms paying associates <em>not</em> to work for them is indicative of a larger crisis, created by an educational system that doesn&#8217;t provide new lawyers with the skills they need:</p> <blockquote><p>[T]he profession is going to go through a crisis, one triggered by a growing buildup of law school graduates who can&#8217;t find work. Year after year, we&#8217;ll produce more new lawyers than the market will hire &#8211; the large firms won&#8217;t be taking on nearly as many, while legal talent demand overall will narrow to lawyers with proven skills and/or experience. And these masses of unemployed law graduates are going to make us face an ugly truth we&#8217;ve been avoiding for years: we&#8217;re doing a terrible job of training our future lawyers.</p></blockquote> <p>via <a href="http://www.slaw.ca/2009/06/07/the-canary-in-our-coal-mine/">The Canary In Our Coal Mine &gt;&gt; Slaw</a>.</p> <p>As a recent law graduate, I certainly feel that I would struggle at certain aspects of practising law at this stage of my career. Many of these weaknesses are very practical: managing clients, knowing what documents to submit to a court, conducting discovery, etc. Some of these are, quite frankly, left to paralegels even by the most experienced lawyers, a practice that may be efficient, but can lead to paralegals knowing more about the &#8220;actual&#8221; practicalities of law that lawyers!</p> <p>Law school made me a better legal researcher, reader, writer and thinker. These are critical legal skills, but not the only ones. My time externing for a judge gave me more &#8220;real&#8221; experience, as did my summer internship. Clinics are similar in their practical skills training.</p> <p>Perhaps we need to officially accept the need for an apprenticship-style program as part of the law school system? (Either within the 3-year program, or a required component before taking the bar.) This kind of on-the-job training is the best way to get the necessary skills to practice, and making it part of legal training would remove the dodge of getting clients to pay for turning raw lawyers into minimally-effictive ones.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/jobs-for-new-lawyers-are-hard-to-come.html"> Jobs for new lawyers are hard to come by </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.time.com/time/business/article/0%2C8599%2C1887270%2C00.html%3Fxid%3Drss-topstories&amp;a=3989032&amp;rid=767860e1-05c9-447d-b847-21d920cd24fc&amp;e=dff8660e7a139951f0219d1cdbad1a14">Law-School Grads See Promised Jobs Put On Hold</a> (time.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20100110023723/http://abovethelaw.com:80/2009/05/wake_forest_law_student_the_la.php"> Wake Forest Law Student: The Latest Meltdown </a> (abovethelaw.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/who-could-be-hired-today.html"> Who Could Be Hired Today? </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=6d09cc16-1c09-4681-aaac-2801300df635" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Evolution vs. Revolution: Overcoming Resistance to Change" https://inpropriapersona.com/articles/evolution-vs-revolution-overcoming-resistance-to-change/ Sun, 07 Jun 2009 01:45:14 +0000 0ad59c842f53f543d0439ab94c67a239 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 200px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/gigaom"><img title="Image representing GigaOm as depicted in Crunc..." src="http://www.crunchbase.com/assets/images/resized/0001/4325/14325v1-max-450x450.png" alt="Image representing GigaOm as depicted in Crunc..." width="190" height="62" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p>Speaking in the context of technology, Michael Crandell at GigaOM <a title="You Say You Want a Cloud Revolution" href="http://gigaom.com/2009/06/06/you-say-you-want-a-cloud-revolution/">writes</a>:</p> <blockquote><p>Take yourself back for a moment to 1990, to the era of dueling operating systems: <a href="http://www.networkworld.com/news/2007/102607-arguments-windows-os2.html">OS/2 and Windows</a>. At the time, many people still used MS-DOS, and Windows was new (and klunky). Microsoft had cooperated with IBM to create OS/2 to overcome the limitations of DOS by adding multitasking, protected mode, and enhanced video <a class="zem_slink" title="Application programming interface" rel="wikipedia" href="http://en.wikipedia.org/wiki/Application_programming_interface">APIs</a>. OS/2, they both trumpeted, was a revolutionary computing platform.</p> <p>Oops. Guess what? Turns out no one wanted revolutionary. We all wanted those improvements, to be sure, but we wanted them delivered in a way that didn&#8217;t require redesigning and rewriting our applications, or limiting the devices we could use. Voila! Windows 3.0 brought us <em>evolutionary</em> OS advances, and we all know who won.</p></blockquote> <p>Michael applies this lesson to &#8220;<a class="zem_slink" title="Cloud Computing" rel="wikinvest" href="http://www.wikinvest.com/concept/Cloud_Computing">cloud computing</a>,&#8221; a (some say) revolutionary approach to technology infrastructure that places data and applications in remote data centers accessible via the Internet:</p> <blockquote><p>What does this have to do with cloud computing? Well, the same principle applies to cloud offerings today. The easier a platform or service is to adopt for existing applications and uses, the more popular it&#8217;s going to be, whereas the more it breaks with current practice, the less widespread its appeal.</p></blockquote> <p>But the lesson here is broader than the application to cloud computing or even technology. People generally are resistant to change, especially when it means throwing out work they&#8217;ve already invested in. This goes for changes in regulatory schemes, legal standards, APIs, user interfaces, and business models. If there can be this much resistance to a new approach that allows for cheaper, more flexible, and more rapid application development, should it be any wonder that music labels or Hollywood so rabidly seek greater protections to preserve the business approach they&#8217;ve been using successfully for so long? (Or that the electoral college still exists?)</p> <p>This is a fundamental lesson that can be applied at many levels. It can mean branding a revolutionary change as evolutionary. It can also mean providing a clear transition to those impacted that protects previous investments.</p> <p>But the preference for evolution, for protecting prior investments, does not translate to requiring timid technological, legal or social development. It merely means softening the sense of change by giving users, customers, or citizens something to hold onto that provides a familiar interface (in tech terms) to the new way.</p> <p>A good lesson to remember whatever your field.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/got-hour-create-server-in-cloud.html">Got an Hour? Create a Server in the Cloud</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=1fe959c5-789e-49e5-8d72-157071d7da3b" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Thomson Reuters Lawsuit Against Zotero Dismissed" https://inpropriapersona.com/articles/thomson-reuters-lawsuit-dismissed-at-the-quintessence-of-ham/ Sat, 06 Jun 2009 00:20:52 +0000 3f78f28718cb8f496b86b6cb30b77308 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 210px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/Image:GMU_logo.svg"><img title="George Mason University" src="http://upload.wikimedia.org/wikipedia/en/thumb/e/e3/GMU_logo.svg/200px-GMU_logo.svg.png" alt="George Mason University" width="200" height="132" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/Image:GMU_logo.svg">Wikipedia</a></dd> </dl> </div> </div> <p>Sean, a <a class="zem_slink" title="Zotero" rel="homepage" href="http://www.zotero.org/">Zotero</a> co-director, announced yesterday that the lawsuit filed by <a class="zem_slink" title="Reuters Venture Capital" rel="homepage" href="http://www.thomsonreuters.com/">Thomson Reuters</a> (makers of <a class="zem_slink" title="EndNote" rel="homepage" href="http://www.endnote.com">EndNote</a>) was dismissed yesterday:</p> <blockquote><p>I&#8217;m delighted to announce that this morning the Fairfax Circuit Court dismissed the <a href="http://www.citmedialaw.org/threats/thomson-reuters-scientific-inc-endnote-v-george-mason-university-zotero">lawsuit</a> filed against Zotero by Thomson Reuters. The lawsuit had claimed that the <a class="zem_slink" title="Center for History and New Media" rel="homepage" href="http://chnm.gmu.edu">Center for History and New Media</a> &#8220;reverse-engineered&#8221; Thomson Reuters&#8217;s EndNote software to provide data interoperability between Zotero and EndNote.</p></blockquote> <p>via <a href="http://quintessenceofham.org/2009/06/04/thomson-reuters-lawsuit-dismissed/">Thomson Reuters Lawsuit Dismissed at The Quintessence of Ham</a>.</p> <p>While some are billing this as a victory for <a class="zem_slink" title="Open Source" rel="wikinvest" href="http://www.wikinvest.com/concept/Open_Source">open-source</a> software &#8211; which, in some sense at least, it is, since it avoids a further attack on this front against Zotero development &#8211; the case was never quite about copyright or open source. In its essense, this case instead focused on a contract claim that <a class="zem_slink" title="George Mason University" rel="geolocation" href="http://maps.google.com/maps?ll=38.8308,-77.3075&amp;spn=1.0,1.0&amp;q=38.8308,-77.3075%20%28George%20Mason%20University%29&amp;t=h">George Mason University</a> violated the EndNote contract by developing an &#8220;import&#8221; feature for Zotero. The GMU site license for EndNote (which I understand GMU did not renew) forbid <a class="zem_slink" title="Reverse engineering" rel="wikipedia" href="http://en.wikipedia.org/wiki/Reverse_engineering">reverse engineering</a>, and Thomson Reuters believed that this was the method used by Zotero&#8217;s developers to create the EndNote import function.</p> <p>Details are still sketchy, but Sean promises to have court transcripts up next week.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.readwriteweb.com/archives/zotero_goes_20_gets_groups.php"> Zotero Goes 2.0: Makes Doing Research in Groups Easier </a> (readwriteweb.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=1e79f00f-8050-40c0-a655-85ec19cdf5c2" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Track Changes in Terms of Service" https://inpropriapersona.com/articles/track-changes-in-terms-of-service/ Fri, 05 Jun 2009 23:45:55 +0000 8dbbd8fc42c2e1b59873a8adf21cbc01 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 142px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/Image:EFF.svg"><img title="Electronic Frontier Foundation" src="http://upload.wikimedia.org/wikipedia/en/thumb/2/2c/EFF.svg/132px-EFF.svg.png" alt="Electronic Frontier Foundation" width="132" height="92" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/Image:EFF.svg">Wikipedia</a></dd> </dl> </div> </div> <p>The <a class="zem_slink" title="Electronic Frontier Foundation" rel="homepage" href="http://www.eff.org/">Electronic Frontier Foundation</a> has introduced a useful new tool called <a href="http://www.tosback.org/">TOSBack</a>:</p> <blockquote><p>Terms-Of-Service and other website policies form the foundation of your relationship with social networking sites, online businesses, and other Internet communities. But most people become aware of these terms only when there&#8217;s a problem. TOSBack was created to help you monitor the policies for the websites you use everyday, and show how they change over time.</p></blockquote> <p>via <a href="http://www.tosback.org/about.php">TOSBack | The Terms-Of-Service Tracker</a>.</p> <p>A few examples of recent highlights from the tool include:</p> <ul> <li>Facebook&#8217;s policies changed on June 2nd</li> <li>GoDaddy changed its Domain Name Registration Agreement on May 22nd</li> <li>eBay changed its User Agreement on May 15th</li> </ul> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-1023_3-10257818-93.html?part=rss&amp;subj=news"> EFF tracking policy changes at Google, Facebook and others </a> (news.cnet.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.wired.com/threatlevel/2009/06/eff-posts-terms-of-service-tracker/"> EFF Posts &#8216;Terms of Service&#8217; Tracker </a> (wired.com)</li> <li class="zemanta-article-ul-li"><a href="http://lifehacker.com/5278914/tosback-monitors-terms-of-service-changes-to-google-facebook-and-42-others"> TOSBack Monitors Terms of Service Changes to Google, Facebook, and 42 Others </a> (lifehacker.com)</li> <li class="zemanta-article-ul-li"><a href="http://radar.oreilly.com/2009/06/tosback-effs-much-needed-terms.html"> TOSBack: EFF&#8217;s Much-Needed Terms of Service Tracker </a> (radar.oreilly.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3a14a7f0-e9bd-4854-9577-ae7923b19894" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "“Everything is free” is not a business model" https://inpropriapersona.com/articles/everything-is-free-is-not-a-business-model/ Fri, 05 Jun 2009 20:27:56 +0000 cc93937649dab92839a84f38223e8ca8 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 260px;"> <dt class="wp-caption-dt"><a href="http://www.crunchbase.com/product/techdirt"><img title="Image representing TechDirt as depicted in Cru..." src="http://www.crunchbase.com/assets/images/resized/0002/7044/27044v3-max-250x250.png" alt="Image representing TechDirt as depicted in Cru..." width="250" height="36" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://www.crunchbase.com">CrunchBase</a></dd> </dl> </div> </div> <p>Mike Masnick responds to the complaint of some people that providing &#8220;free&#8221; information, tools, and so on (<a class="zem_slink" title="Open Source" rel="wikinvest" href="http://www.wikinvest.com/concept/Open_Source">open source</a>, for example) is not a sustainable business model going forward because &#8220;everything is free&#8221; cannot work:</p> <blockquote><p>No one is suggesting any business model where &#8220;everything is free.&#8221; Everyone&#8217;s been focusing on ways to take some stuff as being free and use it to make other stuff more valuable and worth paying for. And it&#8217;s working. So why is Baptiste pretending that people are pushing &#8220;everything is free&#8221;? It&#8217;s because the new <a class="zem_slink" title="Business model" rel="wikipedia" href="http://en.wikipedia.org/wiki/Business_model">business models</a> upset the apple cart for an organization like CISAC, which wants to create a big collective licensing deal (collective licensing is easy, compared to actually giving people a reason to buy).</p> <p>His real fear isn&#8217;t that &#8220;everything is free,&#8221; because that&#8217;s not happening at all. His real fear is that the new business models don&#8217;t require groups like CISAC.</p></blockquote> <p>via <a href="http://techdirt.com/articles/20090605/0758235137.shtml">Dear Free Haters: No One Has Said &#8216;Everything&#8217; Is Free | Techdirt</a>.</p> <p>This is a typical sort of argument I hear from entrenched business interests who have a model of operation that has worked (music, Hollywood, newspapers) appears threatened. Instead of adapting, these interests attempt to legislate greater legal protection (extending copyright as long as possible, for example) and set up &#8220;<a class="zem_slink" title="Straw man" rel="wikipedia" href="http://en.wikipedia.org/wiki/Straw_man">straw-man</a>&#8221; arguments like &#8220;everything is free can&#8217;t work&#8221; to justify these <a class="zem_slink" title="Protectionism" rel="wikipedia" href="http://en.wikipedia.org/wiki/Protectionism">protectionist</a> approaches (generally termed &#8220;<a class="zem_slink" title="Rent seeking" rel="wikipedia" href="http://en.wikipedia.org/wiki/Rent_seeking">rent seeking</a>&#8221; in economics).</p> <p>I am sympathetic to some level of protection through copyright for example, but not to protecting a business model simply because it worked before. Innovation requires adapting, and as we&#8217;ve seen with GM and Chrysler, a changing world will eventually catch up to your business, and the result isn&#8217;t pretty.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090507/1743534788.shtml"> Free Does Not Mean No Business Model </a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.downes.ca/cgi-bin/page.cgi?post=49033"> Apparently, Providing Derrida&#8217;s Works For Free Harms The Diffusion Of His Thoughts </a> (downes.ca)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/does-copyright-foster-or-hinder-innovation/"> Does Copyright Foster or Hinder Innovation? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/saving-newspapers-by-changing-law.html"> Saving Newspapers by Changing the Law </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=ee18c548-6523-4a19-a1af-15ad2d542d72" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Adapting the Law to New Theories of Science" https://inpropriapersona.com/articles/adapting-the-law-to-new-theories-of-science/ Fri, 05 Jun 2009 08:30:41 +0000 e1b11821debff051eb90e864d30ddd82 <p>John Pfaff continues his interesting discussion of science, the adversarial process, and the law at PrawfsBlawg:</p> <blockquote><p>So far I have <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/05/the-goals-of-adversarialism.html">looked</a> at how to <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/05/systematic-reviews-and-adversarialism-truth-and-arbitrariness.html">incorporate</a> <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/05/systematic-reviews-conflict-resolution-and-party-control.html">systematic</a> <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/05/debating-the-guidelines.html">reviews</a> into our current legal framework, whether through court-appointed Rule 706 experts or through special masters or technical advisors assisting judges in their <em>Daubert</em> or <em>Frye</em> decisions. In both cases, however, partisan experts remain. Rule 706 experts, for example, testify along side&#8211;not in place of&#8211;partisan experts; and special masters or technical advisors never testify at all, instead only helping to determine which partisan experts are allowed to testify. Can we go further, however? Is it even reasonable to ask whether we can abolish the partisan expert altogether and rely solely on the systematic review?</p></blockquote> <p>via <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/06/sytematic-reviews-and-the-history-of-adversarialism.html#more">PrawfsBlawg: Sytematic Reviews and the Scientization of Law</a>.</p> <blockquote><p>When confronted with significant epistemic shifts, the law adapts. Perhaps slowly, perhaps imperfectly, but it adapts. The changes over the past several decades are not small adjustments but a profound change in our understanding of what constitutes scientific knowledge, in our ability to produce the necessary information, and in our sense of how to compile that information into usable knowledge. It is hard to believe that the law will not adapt once more.</p></blockquote> <p>Recommended reading.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/evidence-based-approach-to-law-and.html"> An Evidence-Based Approach to Law and Science </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/bringing-better-science-to-courtroom.html"> Bringing Better Science to the Courtroom </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d434bf8f-f119-4037-a28b-d2f4d508850e" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "In re Bilski Revisited: Business-Method Patents to Go Before the Supreme Court" https://inpropriapersona.com/articles/in-re-bilski-revisited-business-method-patents-to-go-before-the-supreme-court/ Mon, 01 Jun 2009 17:24:37 +0000 ee506fc761b16f69e10b24ca8acf81dd <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:US_Supreme_Court_Building.jpg"><img title="U.S. Supreme Court building." src="http://upload.wikimedia.org/wikipedia/commons/thumb/3/32/US_Supreme_Court_Building.jpg/300px-US_Supreme_Court_Building.jpg" alt="U.S. Supreme Court building." width="300" height="225" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/Image:US_Supreme_Court_Building.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>Ashby Jones writes:</p> <blockquote><p>This just in: The <a class="zem_slink" title="Supreme Court of the United States" rel="geolocation" href="http://maps.google.com/maps?ll=38.8907083333,-77.0043444444&amp;spn=1.0,1.0&amp;q=38.8907083333,-77.0043444444%20%28Supreme%20Court%20of%20the%20United%20States%29&amp;t=h">Supreme Court</a> on Monday agreed to hear the case <a class="zem_slink" title="In re Bilski" rel="wikipedia" href="http://en.wikipedia.org/wiki/In_re_Bilski">In re Bilski</a>, on appeal from the <a class="zem_slink" title="United States Court of Appeals for the Federal Circuit" rel="homepage" href="http://www.cafc.uscourts.gov/">Federal Circuit</a>.</p> <p>At issue is the viability of so-called <a class="zem_slink" title="Business method patent" rel="wikipedia" href="http://en.wikipedia.org/wiki/Business_method_patent">business-method patents</a>, that is, whether business methods and processes are patentable. Click <a title="SCOTUSblog coverage" href="http://www.scotusblog.com/wp/todays-orders-39/">here</a> for coverage from Scotusblog.</p></blockquote> <p>via <a href="http://blogs.wsj.com/law/2009/06/01/bilski-supremes-grant-cert-on-business-method-patent-case/">Bilski! Supremes Grant Cert on Business-Method Patent Case &#8211; Law Blog &#8211; WSJ</a>.</p> <p>Michael Risch has more:</p> <blockquote><p>I was extremely critical of the Federal Circuit opinion when it came out, and not just because of sour grapes that the <a class="zem_slink" title="Amicus curiae" rel="wikipedia" href="http://en.wikipedia.org/wiki/Amicus_curiae">amicus brief</a> I wrote with three other professors was largely ignored (and worse yet, uncited!). I predicited in my prior posts that the new test would be a disaster, and &#8211; to my mind &#8211; it has been. Bilski&#8217;s <a class="zem_slink" title="Machine-or-transformation test" rel="wikipedia" href="http://en.wikipedia.org/wiki/Machine-or-transformation_test">machine or transformation test</a> (see here for a description) has led to rejections of a variety of <a class="zem_slink" title="Patent" rel="wikipedia" href="http://en.wikipedia.org/wiki/Patent">patents</a> that were otherwise seemingly inventive, and that were completely unrelated to the much maligned business methods of Bilski. Worse (and a focus of my article), the opinion leaves the test so vague that no one can really know if they have <a class="zem_slink" title="Patentable subject matter" rel="wikipedia" href="http://en.wikipedia.org/wiki/Patentable_subject_matter">patentable subject matter</a> until after a long process.</p></blockquote> <p>via <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/06/hello-again-and-bilski-redux.html">PrawfsBlawg: Hello Again and Bilski Redux</a></p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090303/0135383959.shtml">Bilski Continues To Cause Software Patents To Get Rejected</a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/challenging-strong-presumption-of.html"> Challenging the Strong Presumption of Patent Validity </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/microsoft-gets-slammed-in-yet-another.html"> Microsoft Gets Slammed in Yet Another Patent Suit </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f00a1d9d-8d29-4a4d-a9d9-23bd32efacee" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Journalism and Ethical Blogging" https://inpropriapersona.com/articles/journalism-and-ethical-blogging/ Mon, 01 Jun 2009 15:30:20 +0000 6d4537d7fd36cd9d932cfdb17d9c1c59 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/Image:NYTimes-Page1-11-11-1918.jpg"><img title="Front page of the New York Times on Armistice ..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/7/75/NYTimes-Page1-11-11-1918.jpg/300px-NYTimes-Page1-11-11-1918.jpg" alt="Front page of the New York Times on Armistice ..." width="150" height="190" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/Image:NYTimes-Page1-11-11-1918.jpg">Wikipedia</a></dd> </dl> </div> </div> <p>Martha Sperry of the <a href="http://advocatesstudio.wordpress.com/">Advocate&#8217;s Studio</a> writes:</p> <blockquote><p>Yesterday, I read something that riled me up. A tech blog post with an inflammatory title designed to ensure click-through and &#8220;opinionated&#8221; content marginally &#8220;based&#8221; on &#8220;facts&#8221; with an equally inflammatory bent. On a well-respected and highly viewed tech blog.</p></blockquote> <p>via <a href="http://advocatesstudio.wordpress.com/2009/05/29/honor-among-bloggers/">Honor Among Bloggers « Advocate&#8217;s Studio</a>.</p> <p>She goes on to note that this kind of pandering to increase clicks is not without harm:</p> <blockquote><p>I surely don&#8217;t begrudge anyone their income opportunities, as long as they are not hurting anyone in the process. Are these manipulators hurting anyone here? Umm, yes!  Whether they choose to be or not, bloggers populate the new wave of journalism.</p></blockquote> <p>She goes on to point out that professional journalists adhere to a code of ethics, which includes ideas like: be honest, avoid misrepresentation, distinguish news from analysis and commentary, and keep advertising distinct from news. This last certainly raises questions about paid reviews in blogs and other similar ventures.</p> <p>I understand her point that as traditional news sources fade in importance, alternative sources of news and analysis &#8211; like bloggers &#8211; have a greater ethical responsibility to take their place. But bloggers are far more varied that journalists, so perhaps it is unfair to expect all bloggers to adhere to such a standard?</p> <p>Personally, I feel the current newspaper troubles are temporary, although what will emerge out of it may be nothing like current newspapers. Situational, economic and technological changes often cause extensive disruption to entrenched industry, but eventually new business models emerge, even if old players are replaced by new ones. I believe this is what will occur with journalism, but it may take time.</p> <p>Meanwhile, bloggers who maintain high standards of ethics have the potential to contribute for the benefit of us all. How can one translate the traditional code of journalist ethics into blogging terms? <a rel="#someid8" href="http://web.archive.org/web/20150717185422/http://cyberjournalist.net:80/news/000215.php">Cyber Journalist</a> has a proposal that makes sense, and I recommend you read and consider it.</p> <p>But how can we tell which bloggers uphold high standards of ethics? In the traditional world of journalism, newspapers had a reputation to maintain such that failing their readers could bankrupt them. Of course, an alternative business model is to specialize in<em> not</em> honestly seeking to inform readers &#8211; but most such &#8220;news&#8221; sources are well known for this. (Very unfortunately, even as obvious as these may be to informed individuals, some members of the public are nonetheless easily confused.) But nevertheless, there are a limited number of such sources, and over time it becomes possible to sort them out and keep track of reputations.</p> <p>In blogging, sources come and go quickly. Anyone can set up a blog. Anyone can write and be read. Potentially, this rapidity better allows for quick market decisions that separate the &#8220;good&#8221; from the &#8220;bad&#8221; sources &#8211; so perhaps ethical bloggers will simply rise to the top.</p> <p>The market (and the public) often needs help with this sifting, though, so hopefully reputation-ranking and publication services of some kind &#8211; ”hopefully based on more than simply number of readers (as many <a class="zem_slink" title="Crowdsourcing" rel="wikipedia" href="http://en.wikipedia.org/wiki/Crowdsourcing">crowdsourcing</a> approaches currently do) &#8211; ”will emerge to assist.</p> <p>Sperry has more about how this might apply to legal bloggers specifically (who she suggests likely already adhere to higher standard, due to the greater importance of their reputations to their businesses). She also suggests you leave the &#8220;wild assertions and crazy opinions&#8221; for social media (like <a class="zem_slink" title="Twitter" rel="homepage" href="http://twitter.com">Twitter</a>) or cocktail parties. I might go just a bit farther, given the permanence of online speech, and suggest you stick to the cocktail parties, but otherwise, I second her advice.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20120508224503/http://scienceblogs.com/clock/2009/03/defining_the_journalism_vs_blo.php">Defining the Journalism vs. Blogging Debate, with a Science Reporting angle [A Blog Around The Clock]</a> (scienceblogs.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/saving-newspapers-by-changing-law.html"> Saving Newspapers by Changing the Law </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/journalist-shield-laws-and-bloggers.html"> Journalist Shield Laws and Bloggers </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=1d5f6cac-1632-4da4-8f61-8c4e4d386f85" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Does Copyright Foster or Hinder Innovation?" https://inpropriapersona.com/articles/does-copyright-foster-or-hinder-innovation/ Sat, 30 May 2009 15:30:15 +0000 16f8bcad5276132cb78e3ddb63d6b099 "Obama to Appoint Information Security Coordinator" https://inpropriapersona.com/articles/obama-to-appoint-information-security-coordinator/ Fri, 29 May 2009 18:54:33 +0000 bac94fe3ddb3a3e086c9d9294d520c24 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/35034347347@N01/3347216115"><img title="Books I've Read: Neuromancer" src="http://farm4.static.flickr.com/3610/3347216115_cc4bc08882_m.jpg" alt="Books I've Read: Neuromancer" width="240" height="180" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/35034347347@N01/3347216115">Myles!</a> via Flickr</dd> </dl> </div> </div> <blockquote><p>President Barack Obama confirmed Friday that the White House will be creating a new office to be led by a cybersecurity czar. The office will be in charge of coordinating efforts to secure government networks and U.S. critical infrastructures.</p></blockquote> <p>via <a href="http://www.wired.com/threatlevel/2009/05/netprivacy/">Obama Says New Cyber Czar Won&#8217;t Spy on the Net | Threat Level | Wired.com</a>.</p> <p>(Incidentally, can we please get away from &#8220;cyber&#8221; everything? It&#8217;s so last century, reminiscent of <a class="zem_slink" title="AOL" rel="wikipedia" href="http://en.wikipedia.org/wiki/AOL">AOL</a> and 1984&#8217;s <a class="zem_slink" title="Neuromancer" rel="amazon" href="http://www.amazon.com/Neuromancer-William-Gibson/dp/0441569560%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0441569560">Neuromancer</a>.)</p> <p>Most reviewers agree that this is long overdo, as do I. Critics generally seem to worry that this will simply cause greater confusion, increased bureaucracy, and general inefficiency (i.e., the typical complaint about government).</p> <p>I do worry about increased government interference in areas that the private sector is better equipped to handle. Historically in this area, police and government agencies have not been effective in dealing with rapidly-evolving technologies, and have frustrated sysadmins attempting to deal with the issue &#8220;on the ground.&#8221;</p> <p>Nonetheless, the government has to adapt to a changing world, and this is a necessary part of this. Someone has to coordinate the many agencies charged with protecting both public and private infrastructure.</p> <p>Interestingly, along with this announcement President Obama reiterated his commitment to privacy and <a class="zem_slink" title="Civil liberties" rel="wikipedia" href="http://en.wikipedia.org/wiki/Civil_liberties">civil liberties</a>, as well as <a class="zem_slink" title="Network neutrality" rel="wikipedia" href="http://en.wikipedia.org/wiki/Network_neutrality">network neutrality</a>:</p> <blockquote><p>Obama was quick to add that the new White House cybersecurity office would include an official whose job is to ensure that the government&#8217;s cyber policies don&#8217;t violate privacy and civil liberties of Americans. He also reaffirmed his support for the principle of net neutrality.</p></blockquote> <p>I am concerned about the potential for certain private interests to subvert &#8220;cybersecurity&#8221; into &#8220;protect our intellectual property.&#8221; Obama did not do this in his announcement, but making this a priority for the new coordinator could have problematic implications, inserting increasing police powers into what is, at its essence, a civil offense (despite a trend toward criminalization).</p> <p>My hope is that this new coordinator will quietly improve <a class="zem_slink" title="Information security" rel="wikipedia" href="http://en.wikipedia.org/wiki/Information_security">information security</a> behind the scenes, and we won&#8217;t need to hear much at all about this issue. (But that&#8217;s unlikely.)</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.slumpedoverkeyboarddead.com/2009/05/29/after-review-of-computer-security-obama-calling-for-cyber-czar-and-more-awareness-of-threat-minneapolis-st-paul-star-tribune/"> After review of computer security, Obama calling for &#8216;cyber czar&#8217; and more awareness of threat (Minneapolis-St. Paul Star Tribune) </a> (slumpedoverkeyboarddead.com)</li> <li class="zemanta-article-ul-li"><a href="http://blogs.wsj.com/digits/2009/05/29/obama-releases-cybersecurity-report-much-work-to-be-done/?mod=rss_WSJBlog"> Obama Releases Cybersecurity Report: &#8216;Much Work to Be Done&#8217; </a> (blogs.wsj.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.readwriteweb.com/archives/online_security_white_house_establishes_new_cyber.php"> Online Security: White House Establishes New Cyber Czar Position </a> (readwriteweb.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=894b6a3d-5045-4906-9607-08cc49bfae4c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Are Tweets Copyrightable?" https://inpropriapersona.com/articles/are-tweets-copyrightable/ Thu, 28 May 2009 23:06:54 +0000 bf32059054a349417d625e608f4c1181 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/45082883@N00/3465092471"><img title="Blogging &amp; RSS via Twitter" src="http://farm4.static.flickr.com/3568/3465092471_94f8520b77_m.jpg" alt="Blogging &amp; RSS via Twitter" width="240" height="158" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/45082883@N00/3465092471">Travelin&#8217; Librarian</a> via Flickr</dd> </dl> </div> </div> <p>Brock Shinen writes an in-depth article from the perspective of an intellectual property and entertainment lawyer that says, &#8220;No&#8221;:</p> <blockquote><p>My interest was raised when a great friend of mine pointed me to a blog post on Mark Cuban&#8217;s blog (<a href="http://blogmaverick.com/2009/03/29/are-tweets-copyrighted/">http://blogmaverick.com/2009/03/29/are-tweets-copyrighted/</a>). The question was quite simple: Are Tweets Copyrighted? I quickly jumped in, throwing in a sentence or two about the danger of that way of thinking. What startled me was the high level of participation and the supposed consensus that Tweets are, in fact, copyrightable and copyrighted. That&#8217;s why I&#8217;m writing this article.</p></blockquote> <p>via <a href="http://www.canyoucopyrightatweet.com/">Twitter and Copyright &#8211; &#8220;Twitterlogical: The Misunderstanding of Ownership,&#8221; by Brock Shinen, Esq.</a>.</p> <p>Shinen goes on to methodically outline and respond to the main arguments:</p> <ul> <li>Twitter doesn&#8217;t own my tweets, so I must</li> <li><a class="zem_slink" title="Fair use" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fair_use">Fair use</a> doesn&#8217;t come into play if the material isn&#8217;t copyrightable and copyrighted</li> <li>A quick read of sections 101 and 102 of the Copyright Act is not enough</li> <li>Does the <a class="zem_slink" title="United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/United_States_Constitution">US Constitution</a> say anything about this topic?</li> <li>All Tweets are not created equal</li> <li>Facts are not copyrightable</li> <li>Idea versus expression</li> <li>Copyright protection requires originality and originality requires creativity</li> <li>Size matters</li> <li>The monopoly of language</li> <li>The problem of registration</li> <li>Is there a protectable Tweet?</li> <li>The parting shot</li> </ul> <p>My short summary? Basically, Shinen maintains it would be impractical and a ridiculous waste of a court&#8217;s time to attempt to enforce <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright</a> on less than 140 characters of expression, for reasons he describes in detail.</p> <p>Considering his logic and my own studies in <a class="zem_slink" title="Intellectual property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_property">intellectual property law</a>, I am strongly inclined to agree with Shinen. Very few, if any, individual Tweets are (enforceably) copyrightable, although potentially collections of an individuals Tweets, taken as a whole, may be in certain circumstances.</p> <p>A final note: Shinen makes the important point that many non-lawyers confuse the actuality of legality with the theoretical legality of something, such as copyright. Just because something may be copyrightable in theory does not make it so in practical terms (equally, just because something can&#8217;t be copyrighted doesn&#8217;t mean someone won&#8217;t make your life miserable trying to enforce their copyright). The law is less about technicalities and more about practicalities than many people realize.</p> <p>(Thanks to <a title="Can you copyright a tweet? " href="http://www.kottke.org/09/05/can-you-copyright-a-tweet">kottke.org</a> for pointing me to this.)</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090329/2229284297.shtml">Copyright And Libel Questions Hit The Twitterverse</a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.outsidethebeltway.com/archives/twitter_law_are_tweets_copyrighted/">Twitter Law: Are Tweets Copyrighted?</a> (outsidethebeltway.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=5f9ff369-b8a8-4202-be53-1c641c5e07fb" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Have “Real-Time” Services Altered the Balance of the DMCA?" https://inpropriapersona.com/articles/have-real-time-services-altered-the-balance-of-the-dmca/ Sun, 24 May 2009 07:40:00 +0000 d96062385b6d1fae91639b6c73dd7c9f <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 310px;"><a href="http://en.wikipedia.org/wiki/Image:Piracy_is_a_crime_-_Unskippable_Anti-Piracy_track.png"><img style="border:medium none;display:block;" src="http://upload.wikimedia.org/wikipedia/en/thumb/d/d9/Piracy_is_a_crime_-_Unskippable_Anti-Piracy_track.png/300px-Piracy_is_a_crime_-_Unskippable_Anti-Piracy_track.png" alt="A short information film included on many DVDs..." width="300" height="161" /></a><span class="zemanta-img-attribution">Image via <a href="http://en.wikipedia.org/wiki/Image:Piracy_is_a_crime_-_Unskippable_Anti-Piracy_track.png">Wikipedia</a></span></p> <p>The <a href="http://en.wikipedia.org/wiki/DMCA">DMCA</a> has a bad reputation with those who prefer to see greater freedom of information flow. Its anti-circumvention provisions provisions have attracted particular antipathy, and many believe the DMCA takedown provisions are regularly abused.</p> <p>The point of the DMCA, I believe, was to further the general goal of IP protection in the United States: foster distribution while also encouraging innovation (through granting temporary monopolies). Thus, &#8220;providers of online services&#8221; (generally thought of as ISPs, but potentially more broadly interpretable to include other online facilitators of content, such as <a class="zem_slink" title="YouTube" rel="homepage" href="http://www.youtube.com/">YouTube</a> and similar services) have a &#8220;<a href="http://www.chillingeffects.org/dmca512/faq.cgi">safe harbor</a>&#8221; to protect them from charges of direct or indirect infringement, provided they meet certain criteria and take certain legal steps in response to claims of infringement (thus the existence of &#8220;takedown notices&#8221;).</p> <p>With the shift away from the more straightforward ISP model to include more modern services like YouTube, content owners are increasingly frustrated with the DMCA. It puts the burden on content owners to &#8220;police&#8221; sites themselves, instead of required service providers to proactively do it for them. This has led to a &#8220;whack-a-mole&#8221; problem: take down one, and another appears in its place. Some service providers have voluntarily gone beyond the law to try to assist in proactively helping content owners, with the goal of reducing the overhead of dealing with multiple takedown requests and, more recently, to try to encourage copyright owners to put their content on their sites. (A kind of <em><a class="zem_slink" title="Quid pro quo" rel="wikipedia" href="http://en.wikipedia.org/wiki/Quid_pro_quo">quid-pro-quo</a></em> negotiation.)</p> <p>Thus it does not surprise me to see this article, <a href="http://www.businessweek.com/technology/content/may2009/tc20090521_159692.htm?chan=top+news_top+news+index+-+temp_technology">Copyright Meets a New Foe: The Real-Time Web</a>, in <a class="zem_slink" title="BusinessWeek" rel="homepage" href="http://www.businessweek.com/">BusinessWeek</a>, essentially pointing out this very problem (and, I should add, presenting it entirely from the perspective of owners and not end-users):</p> <blockquote><p>Copyright law wasn&#8217;t written with today&#8217;s content consumption in mind. The way online video copyright functions is based on a reading of the 10-year-old <a class="zem_slink" title="Digital Millennium Copyright Act" rel="wikipedia" href="http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act">Digital Millennium Copyright Act</a> that equates video hosting sites with <a class="zem_slink" title="Internet service provider" rel="wikipedia" href="http://en.wikipedia.org/wiki/Internet_service_provider">Internet service providers</a>. That law provides a &#8220;safe harbor&#8221; for hosts who respond to copyright claims by taking down infringing content &#8220;expeditiously.&#8221;</p> <p>If you&#8217;re a copyright holder and you want to keep up with your pirated content flitting about the Web &#8211; well, good luck. The way the DMCA is set up means you&#8217;re always chasing, and the real-time Web is racing faster than ever before. Analytics services are only just emerging that will tell you where your views are coming from on a semi-real-time basis.</p></blockquote> <p>Generally, I am of the opinion that business models need to change to meet new technology, and that changing the law to protect stale business models is not the right approach. Nevertheless, the DMCA was created in a different era of the Internet &#8211; perhaps it truly needs to be revised. If so, I hope lawmakers will consider both the very difficult issues of copyright owners (we do still need to create incentives to generate innovations and new content) facing real-time technology, along with the even more critical (in my opinion) importance of distribution to end users.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.plagiarismtoday.com/2009/05/21/a-warning-for-dmca-filers/"> A Warning for DMCA Filers </a> (plagiarismtoday.com)</li> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-1023_3-10200279-93.html?part=rss&amp;subj=news">Google: Most takedown notices are illegitimate</a> (news.cnet.com)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090508/1921274794.shtml"> Everyone Assumes Copyright Only Applies When They Like It </a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/thoughts-about-reforming-digital.html"> Thoughts about reforming the Digital Millennium Copyright Act (DMCA) </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/tech-policy/news/2009/05/youtube-sails-out-of-safe-harbor-to-reinstate-marriage-video.ars"> YouTube sails out of safe harbor to reinstate marriage video </a> (arstechnica.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=63d828d2-dd83-45dd-b6dc-bd86e544d917" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Journalist Shield Laws and Bloggers" https://inpropriapersona.com/articles/journalist-shield-laws-and-bloggers/ Fri, 22 May 2009 04:00:00 +0000 a2db1c64f65d990605f3935466d87a87 <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 310px;"><a href="http://en.wikipedia.org/wiki/Image:Talkingpointsmemo2.png"><img style="border:none;display:block;" src="http://upload.wikimedia.org/wikipedia/en/thumb/4/4f/Talkingpointsmemo2.png/300px-Talkingpointsmemo2.png" alt="On 6 December 2002, Josh Marshall's talkingpoi..." width="300" height="509" /></a><span class="zemanta-img-attribution">Image via <a href="http://en.wikipedia.org/wiki/Image:Talkingpointsmemo2.png">Wikipedia</a></span></p> <p>Should so-called &#8220;<a class="zem_slink" title="Shield laws in the United States" rel="wikipedia" href="http://en.wikipedia.org/wiki/Shield_laws_in_the_United_States">shield laws</a>,&#8221; intended to provide protection for journalists from being forced to reveal their confidential sources, apply to bloggers? The current answer seems to be &#8220;no,&#8221; although the question must be asked on a jurisdiction-by-jurisdiction basis.</p> <p>In the United States, there is no federal shield law, for journalists or bloggers. There are, however, many shield laws at the state level. (For more on this, see <a href="http://www.poynterextra.org/shieldlaw/">A Guide to Journalist Shield Laws</a> from <a class="zem_slink" title="The Poynter Institute for Media Studies" rel="wikipedia" href="http://en.wikipedia.org/wiki/The_Poynter_Institute_for_Media_Studies">Poynter Online</a>, an excellent compendium of such laws.) Some states have already recognized the important of <a class="zem_slink" title="Blog" rel="wikipedia" href="http://en.wikipedia.org/wiki/Blog">blogging</a> to modern <a class="zem_slink" title="Journalism" rel="wikipedia" href="http://en.wikipedia.org/wiki/Journalism">journalism</a>: New York is <a href="http://cityroom.blogs.nytimes.com/2009/05/20/bill-would-extend-shield-law-to-cover-bloggers/">currently debating</a> whether to pass a bill to explicitly extend protection to bloggers.</p> <p>In Australia, <a href="http://foi-privacy.blogspot.com/2009/04/shield-laws-set-for-lively-debate.html">such laws are currently being debated</a> for adoption at the federal level, according to Peter Timmons, a consultant working on freedom of information and privacy protection issues. It&#8217;s unclear to me whether the proposed Australian law would cover bloggers, however.</p> <p>Cearta.ie, an Irish legal blog, has <a href="http://www.cearta.ie/tag/journalists-sources/">several good articles discussing &#8220;journalists&#8217; source privilege&#8221;</a> from an international perspective. I recommend you read through it to get a better idea of the global status of the issues, especially in Europe.</p> <p>From a &#8220;free press&#8221; perspective, the privilege is incredibly valuable. On other hand, like any evidentiary privilege rule (spousal testimony, for example) it can be very frustrating for law enforcement in certain situations. Overall, I think it would be a net good, if written sensibly, and it would also be a net good to extend the privilege to bloggers who act like journalists &#8211; but again, with some specific language defining what that means.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=7d8fa5ee-2ce6-44fa-b801-f84fe4ccd4e1" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "What You Write Could Get You Sued" https://inpropriapersona.com/articles/what-you-write-could-get-you-sued/ Fri, 22 May 2009 03:59:00 +0000 c391e8e0d8dae3f1b19a9a54fd1ce6e5 <p class="zemanta-img" style="float:right;display:block;width:130px;margin:1em;"><a href="http://www.daylife.com/image/02gd5oqaXIaBX?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=02gd5oqaXIaBX&amp;utm_campaign=z1"><img src="http://cache.daylife.com/imageserve/02gd5oqaXIaBX/120x150.jpg" alt="The Wall Street Journal is shown on sale at Hu..." style="border:none;display:block;" width="120" height="150" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.daylife.com/source/Getty_Images">AFP/Getty Images</a> via <a href="http://www.daylife.com/">Daylife</a></span></p> <p>From the <a class="zem_slink" href="http://www.wsj.com/" title="The Wall Street Journal" rel="homepage">Wall Street Journal</a> comes an article cheerfully titled <a href="http://online.wsj.com/article/SB124287328648142113.html">Bloggers, Beware: What You Write Can Get You Sued &#8211; WSJ.com</a></p> <blockquote><p>Be careful what you post online. You could get sued.</p> <p>In March 2008, Shellee Hale of Bellevue, Wash., posted in several online forums about a hacker attack on a company that makes software used to track sales for adult-entertainment Web sites. She claimed that the personal information of the sites&#8217; customers was compromised.</p> <p>About three months later, the software company—which contends that no consumer data were compromised—sued Ms. Hale in <a class="zem_slink" href="http://en.wikipedia.org/wiki/State_court" title="State court" rel="wikipedia">state court</a> in New Jersey, accusing her of embarking &#8216;on a campaign to defame and malign the plaintiffs&#8217; in chat-room posts.</p> <p>In her legal response, Ms. Hale, 46 years old, claims she is covered by so-called <a class="zem_slink" href="http://en.wikipedia.org/wiki/Shield_laws_in_the_United_States" title="Shield laws in the United States" rel="wikipedia">shield laws</a> that protect reporters from suits, because she was acting as a <a class="zem_slink" href="http://en.wikipedia.org/wiki/Journalist" title="Journalist" rel="wikipedia">journalist</a> and was investigating the hacker attack while researching a story on adult-oriented spam.</p> </blockquote> <p>It&#8217;s unclear generally if <a href="https://inpropriapersona.com/2009/05/journalist-shield-laws-and-bloggers.html">&#8220;shield laws&#8221; for reporters</a> protect bloggers or not. It&#8217;s also unclear to me, based on the WSJ article alone, how they would help Ms. Hale. The point of such laws is to protect journalists from being forced to reveal <a class="zem_slink" href="http://en.wikipedia.org/wiki/Journalism_sourcing" title="Journalism sourcing" rel="wikipedia">confidential sources</a>, not to provide them with immunity from <a class="zem_slink" href="http://en.wikipedia.org/wiki/Defamation" title="Defamation" rel="wikipedia">defamation</a> lawsuits.</p> <p>In any case, WSJ articles comes across as rather alarmist in my opinion, but it does contain an important reminder: what you write online is generally public, and that you should be aware of the potential implications of what you write. This is as true about avoiding potential defamation or similar suits as it is to think about the permanence of what you write on line in terms of future employes. <strong>So think before you write.</strong></p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090430/0122244703.shtml"> New Jersey Case Looks At Whether Bloggers Can Protect Sources </a> (techdirt.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.daniweb.com/blogs/entry4070.html">Web Posters&#8217; Anonymity Protected &#8212; At Least in Maryland</a> (daniweb.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/05/journalist-shield-laws-and-bloggers.html">Journalist Shield Laws and Bloggers</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top:10px;height:15px;"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/2a51c159-e286-4467-9b27-89939328af82/" title="Reblog this post [with Zemanta]"><img class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=2a51c159-e286-4467-9b27-89939328af82" alt="Reblog this post [with Zemanta]" style="border:none;float:right;" /></a><span class="zem-script more-related pretty-attribution"></span></div> "Craigslist vs. South Carolina’s Attorney General" https://inpropriapersona.com/articles/craigslist-vs-south-carolinas-attorney-general/ Wed, 20 May 2009 16:27:00 +0000 c4920166c7d9abc45c3fe76f88dbd70a <p><a href="http://farm1.static.flickr.com/47/153327483_267be6f236_m.jpg"><img class="alignright" title="&quot;Craig Newmark&quot; by Flickr user jdlasica, used under a Creative Commons Attribution-Noncommercial 2.0 license" src="http://farm1.static.flickr.com/47/153327483_267be6f236_m.jpg" alt="" width="240" height="177" /></a><a class="zem_slink" title="Craigslist" rel="homepage" href="http://www.craigslist.org/">Craigslist</a>, under threat from the Attorney General of South Carolina, has decided to <a href="http://web.archive.org/web/20120206115932/http://blog.craigslist.org/2009/05/cl-sues-sc-ag-for-declaratory-relief/">proactively defend itself in court</a>:</p> <blockquote><p>craigslist has filed suit against SC AG <a class="zem_slink" title="Henry McMaster" rel="wikipedia" href="http://en.wikipedia.org/wiki/Henry_McMaster">Henry McMaster</a> in federal court in South Carolina, seeking declaratory relief and a restraining order with respect to criminal charges he has repeatedly threatened against craigslist and its executives.</p></blockquote> <p>This comes after Craigslist acted to remove its &#8220;erotic services&#8221; category after complaints that it facilitated prostitution, and is in reaction to an &#8220;ultimatum&#8221; from the Attorney General of South Carolina, Henry McMaster:</p> <blockquote><p>Two weeks ago Mr McMaster presented craigslist with an ultimatum, &#8220;to remove the portions of the Internet site dedicated to South Carolina and its municipal regions which contain categories for and functions allowing for the solicitation of prostitution and the dissemination and posting of graphic pornographic material within ten (10) days.&#8221;</p> <p>&#8220;If those South Carolina portions of the site are not removed,&#8221; McMaster said, &#8220;the management of craigslist may be subject to criminal investigation and prosecution.&#8221;</p></blockquote> <p>Rather than wait for McMaster, Craigslist filed suit seeking to have its legal status affirmed by a court (declaratory relief) and to prevent the AG from proceeding against the company or management (the injunction).</p> <p>Craigslist maintains that its site is legal, and that the threats against it &#8220;represent an unconstitutional <a class="zem_slink" title="Prior restraint" rel="wikipedia" href="http://en.wikipedia.org/wiki/Prior_restraint">prior restraint</a> on free speech.&#8221; (Essentially, government censorship, and a violation of the <a class="zem_slink" title="First Amendment to the United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution">First Amendment</a>.)</p> <p>What&#8217;s more, says Craigslist, they are even more clearly protected by statute (always a more popular argument with the courts than making Constitutional claims, and much less controversial and likely to be overturned or changed on appeal): <a href="http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act">Section 230 of the Communications Decency Act</a>. It provides immunity from liability for providers of an &#8220;interactive computer service&#8221; who publish information provided by others. The Electronic Frontier Foundation <a href="http://www.eff.org/deeplinks/2009/05/craigslist-demands-apology">agrees with Craigslist</a>, arguing that Section 230 &#8220;clearly protects them.&#8221;</p> <p>Section 230, codified at <a href="http://www.law.cornell.edu/uscode/47/230.html">47 U.S.C. § 230</a>, does have some exceptions, and allows for criminal prosecutions for violations of Federal law (230(e)(1)), and allows for state law prosecutions that are &#8220;consistent with this section&#8221; (230(e)(3)). There are also explicit exemptions for obscenity and sexual exploitation of children (230(e)(1)).</p> <p>Per usual, the exact meaning of this kind of language is not obvious at first reading, and one needs to do more legal research to establish the exact boundaries and implications of the law.</p> <p>My feeling is that Craigslist has a decent argument, and—especially given its good-faith attempts to manage &#8220;erotic services&#8221;—it falls within the broad range of service Congress envisioned protecting under the Section 230. As a result, I predict success for Craiglist on this one, either in court or through an out-of-court solution.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.cnewmark.com/2009/05/fighting-back-cl-sues-south-carolina-attorney-general.html"> Fighting back: CL Sues South Carolina Attorney General </a> (cnewmark.com)</li> <li class="zemanta-article-ul-li"><a href="http://blogs.wsj.com/digits/2009/05/18/craigslist-and-sc-attorney-general-step-up-rhetoric/?mod=rss_WSJBlog"> Craigslist and S.C. Attorney General Step Up Rhetoric </a> (blogs.wsj.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.techcrunch.com/2009/05/18/whats-more-important-craigslist-or-south-carolina-a-techcrunch-poll/"> What&#8217;s More Important &#8211; Craigslist or South Carolina? A TechCrunch Poll </a> (techcrunch.com)</li> </ul> "Saving Newspapers by Changing the Law" https://inpropriapersona.com/articles/saving-newspapers-by-changing-the-law/ Tue, 19 May 2009 23:15:00 +0000 956a026c7281cbed51a64f822b1f5b01 <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 160px;"><a href="http://www.daylife.com/image/03TEckD2Ki9Cq?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=03TEckD2Ki9Cq&amp;utm_campaign=z1"><img style="border:medium none;display:block;" src="http://cache.daylife.com/imageserve/03TEckD2Ki9Cq/150x111.jpg" alt="WASHINGTON - MAY 06: Dallas Morning News Publ..." width="150" height="111" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com/">Daylife</a></span></p> <p>In an article entitled, <a href="http://techdirt.com/articles/20090517/0236594905.shtml">Lawyers: To Save Newspapers, Let&#8217;s Destroy Pretty Much Everything Else Good</a>, the always-interesting Techdirt reacts to a recent <a class="zem_slink" title="The Washington Post" rel="homepage" href="http://www.washingtonpost.com/">Washington Post</a> opinion piece about &#8220;saving&#8221; newspapers, and argues, &#8220;It&#8217;s time to stop having Congress keep passing laws that stop innovation in hopes that legacy industries magically come up with faster horses.&#8221;</p> <p>The article Mr. Masnick is reacting to, <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/05/15/AR2009051503000_pf.html">Laws that Could Save Journalism</a>, is in Saturday&#8217;s Washington Post. It was written by <a href="http://www.bakerlaw.com/brucewsanford/">Bruce W. Sanford</a> and <a href="http://web.archive.org/web/20141219215651/http://www.bakerlaw.com:80/brucedbrown/">Bruce D. Brown</a>, two lawyers with a great deal of experience in the laws impacting the news industry.</p> <p>Mr. Sanford is an attorney at Baker Hostetler and is general counsel to the Society of Professional Journalists and has advised many media clients, as well as worked on First Amendment and libel cases throughout the country. Mr. Brown is also an attorney at Baker Hostetler, focusing on media law, privacy, newsgathering and copyright.</p> <p>They begin by saying that massive changes are needed in the law to save journalism:</p> <blockquote><p>Unless Congress embarks on far-reaching change in public policy to maintain the viability of journalism as it evolves online, we will soon find ourselves with the remnants of a broken industry incapable of providing the knowledge necessary to manage life in a complex world. Journalism does not need a bailout, but it does need a sort of &#8220;recovery act&#8221; to bring the legal landscape in line with today&#8217;s publishing technologies.</p></blockquote> <p>They have a very good point when they say, &#8220;Google&#8217;s products (and profit) would look a lot different if, for example, the law said it had to obtain copyright permissions in order to copy and index Web sites.&#8221; In fact, it seems very likely in this scenario that Google would not exist at all, and we may never have had the Internet revolution (with both its positive and negative aspects) at all.</p> <p>After suggesting a number of other protectionist changes, they propose loosening <a class="zem_slink" title="Competition law" rel="wikipedia" href="http://en.wikipedia.org/wiki/Competition_law">antitrust laws</a> to &#8220;protect the public interest:&#8221;</p> <blockquote><p>As noted in the Kerry hearing, publishers need collective pricing policies for their Web sites to finally break out of the expectation of free content that is afflicting the industry. Antitrust immunity is necessary because most individual news sites can&#8217;t go it alone by walling off their content for fees &#8211; readers will simply jump to sites that are still free.</p> <p>A temporary antitrust shelter would serve the public interest by enabling the industry to take steps today to preserve for tomorrow the journalism that benefits us all.</p></blockquote> <p>The article strikes me as a misguided attempt to maintain the status quo in the face of competition from new competitors. Buggy whip makers tried desperately to cling to the old ways when the automobile began to cut into their business, and the music industry has been fighting the same sort of losing battle for years.</p> <p>This is not to say that I believe <em>journalism</em> does not deserve protection and support, even government provided support, during the current climiate of shifting business models. It is easy during such radical shifts to lose the good with the newly inefficient, and journalism is too critical to our society to allow it to fall by the wayside.</p> <p>But is it really going away? Blogging serves the role of early newspapers and pamphlets in this country. They too were quickly written and widely distributed, often outside of traditional business entities. (Think of <a class="zem_slink" title="Thomas Paine" rel="wikipedia" href="http://en.wikipedia.org/wiki/Thomas_Paine">Thomas Paine</a>, <a class="zem_slink" title="Benjamin Franklin" rel="wikipedia" href="http://en.wikipedia.org/wiki/Benjamin_Franklin">Benjamin Franklin</a>, or the <a class="zem_slink" title="Federalist Papers" rel="wikipedia" href="http://en.wikipedia.org/wiki/Federalist_Papers">Federalist Papers</a>.) Why should the existing corporate structure of the newspaper need to exist merely to protect journalism and the free press? This is corporate <a class="zem_slink" title="Protectionism" rel="wikipedia" href="http://en.wikipedia.org/wiki/Protectionism">protectionism</a> at its finest, buried under an honest desire to protect and preserve journalism and the First Amendment.</p> <p>While I am certainly not a libertarian proponent of the glory of the free market, I do believe that markets are key indicators of viability, and often better than the government at selecting more efficient and more optimal outcomes that benefit society as a whole. Changing the laws to protect newspapers from market forces is, I think, the wrong approach. Business must adapt. Permitting them to do otherwise merely creates GMs and Chryslers. On the other hand, changing laws to protect the concept of journalism &#8211; that I could support. I bet such suggestions would look very different from those proposed by Sanford and Brown.</p> <p><a href="http://techdirt.com/articles/20090517/0236594905.shtml">Techdirt</a> has more point-by-point rebuttals, as does <a href="http://web.archive.org/web/20120417224223/http://www.publicknowledge.org/node/2194">Public Knowledge</a>.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://financegeek.com/students-flee-journalism-as-newspapers-crater/"> Students Flee Journalism As Newspapers Crater </a> (financegeek.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.techcrunch.com/2009/05/18/there-we-go-again-no-micropayments-wont-save-journalism/"> There We Go Again. No, Micropayments Won&#8217;t &#8220;Save Journalism&#8221; </a> (techcrunch.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/economists-abolish-copyright-patents-to.html">Economists: Abolish Copyright &amp; Patents to Save the Economy</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20100413075114/http://www.newspaperdeathwatch.com:80/debating-the-new-york-times-future.html"> Debating The New York Times&#8217; Future </a> (newspaperdeathwatch.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=26d4f956-ee4a-4e01-8a2e-f5350495bb51" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Domestic Wiretaps Down in 2008 (including FISA)" https://inpropriapersona.com/articles/domestic-wiretaps-down-in-2008-including-fisa/ Sat, 16 May 2009 17:00:00 +0000 ce70b759e51a0be538c9bdefef89720e <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 160px;"><a href="http://commons.wikipedia.org/wiki/Image:This_Phone_Is_Tapped.jpg"><img style="border:medium none;display:block;" src="http://upload.wikimedia.org/wikipedia/commons/thumb/e/eb/This_Phone_Is_Tapped.jpg/300px-This_Phone_Is_Tapped.jpg" alt="Your conversation is being monitored by the U...." width="150" height="200" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:This_Phone_Is_Tapped.jpg">Wikipedia</a></span></p> <p><span style="font-style:italic;">Domestic wiretaps have dropped by 14 percent from 2007 to 2008. FISA wiretaps are down as well, although the reasons are unclear.</span></p> <p>Pursuant to the <a class="zem_slink" title="Omnibus Crime Control and Safe Streets Act of 1968" rel="wikipedia" href="http://en.wikipedia.org/wiki/Omnibus_Crime_Control_and_Safe_Streets_Act_of_1968">Omnibus Crime Control and Safe Streets Act of 1968</a>, the Administrative Office of the United States Courts <a href="http://web.archive.org/web/20140816032811/http://www.uscourts.gov/Press_Releases/2009/wiretap2008-9.cfm?WT.cg_n=Newsroom&amp;WT.cg_s=WhatsNew_Homepage_Wiretap2008">reports that</a>:</p> <blockquote><p>A total of 1,891 applications to federal and state judges for orders authorizing the interception of wire, oral or electronic communications were reported in 2008. No applications were denied. This is a 14 percent decrease in the total of applications reported, compared to 2007.</p></blockquote> <p>Interestingly, 84 percent of requests dealt with drug-related investigations. Another fact from the report? Only 19 percent of intercepted communications were incriminating in 2008, versus 30 percent in 2007. The last time a <a class="zem_slink" title="Telephone tapping" rel="wikipedia" href="http://en.wikipedia.org/wiki/Telephone_tapping">wiretap</a> authorization was denied was in 2005, and it&#8217;s been since 1998 that more than one has been denied in a single year.</p> <p>These 1,891 are regular, court-approved wiretaps (both state and federal), not those issued pursuant to the <a class="zem_slink" title="Foreign Intelligence Surveillance Act" rel="wikipedia" href="http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act">Foreign Intelligence Surveillance Act</a> (or presidential order or other secret wiretaps). In contrast, according to the <a href="http://www.fas.org/irp/agency/doj/fisa/2008rept.pdf">2008 FISA Annual Report to Congress</a>, there were 2,083 applications for espionage-related wiretaps, with the FISA court denying only one such request. (Reports from 1979 to 2008 are <a href="http://www.fas.org/irp/agency/doj/fisa/#rept">available.</a>) In 2007, there were 2,371 FISA wiretap requests, with three denials.</p> <p>So, to summarize the numbers:</p> <table border="1"> <tbody> <tr> <th>2007 wiretaps</th> <th>2008 wiretaps</th> <th>2007 FISA wiretaps</th> <th>2008 FISA wiretaps</th> </tr> <tr> <td>2,208</td> <td>1,891</td> <td>2,371</td> <td>2,083</td> </tr> </tbody> </table> <p>So, the question remains: why the decrease? (Or is it simply random chance?) I find it interesting that more FISA warrants were issued than regular federal and state wiretap warrants combined. Curious, no?</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://politics.theatlantic.com/2009/05/2083_fisa_court_wiretaps_approved_in_2008.php">2,083 FISA Court Wiretaps Approved in 2008</a> (theatlantic.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.fas.org/irp/agency/doj/fisa/">Foreign Intelligence Surveillance Act</a> (fas.org)</li> <li class="zemanta-article-ul-li"><a href="http://epic.org/privacy/terrorism/fisa/">Foreign Intelligence Surveillance Act (FISA)</a> (epic.org)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20090620033357/http://www.ekris.org:80/docs/WiretapsInternet.html">Wiretaps in the Internet Age</a> (ekris.org)</li> <li class="zemanta-article-ul-li"><a href="http://papers.ssrn.com/abstract=1260035">Transnational Wiretaps and the Fourth Amendment</a> (ssrn.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.cnn.com/2009/POLITICS/04/21/harman.wiretap/index.html%3Feref%3Drss_politics&amp;a=4411042&amp;rid=c2958f95-f1bd-44fb-a596-dcb8cc9658ab&amp;e=219b601240fcfbd3b8a1a2dd940a0699"> Rep. calls alleged wiretap &#8216;abuse of power&#8217; </a> (cnn.com)</li> <li class="zemanta-article-ul-li"><a href="http://comsecllc.blogspot.com/2009/04/interim-report-on-nsa-wiretap-program.html"> Interim report on NSA wiretap program released </a> (comsecllc.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="http://emptywheel.firedoglake.com/2009/04/15/lichtblau-and-risen-report-ongoing-fisa-violations/"> NYT: More Illegal NSA Wiretapping of Americans. . . and Congress </a> (emptywheel.firedoglake.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=08717eee-3e6a-488e-83a3-2231c8efaaf9" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Random House Disabling Kindle Speech" https://inpropriapersona.com/articles/random-house-disabling-kindle-speech/ Fri, 15 May 2009 15:15:00 +0000 e54c397aa4f3f352b28b5256401ee467 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 160px;"> <dt class="wp-caption-dt"><a href="http://www.daylife.com/image/0c6Uf6K6Ye4Pz?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=0c6Uf6K6Ye4Pz&amp;utm_campaign=z1"><img title="NEW YORK - FEBRUARY 09: A reporter holds the ..." src="http://cache.daylife.com/imageserve/0c6Uf6K6Ye4Pz/150x100.jpg" alt="NEW YORK - FEBRUARY 09: A reporter holds the ..." width="150" height="100" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com/">Daylife</a></dd> </dl> </div> </div> <p><a href="http://www.engadget.com/2009/05/14/random-house-now-disabling-text-to-speech-function-of-kindle-e-b/">Random House now disabling text-to-speech function of Kindle e-books</a>:</p> <blockquote><p>Random House has thrown the dreaded &#8220;kill switch&#8221; on about 40 of its titles, including authors such as Toni Morrison.</p></blockquote> <p>Cory Doctorow <a href="http://www.boingboing.net/2009/05/14/kindle-owners-start.html">adds some background</a>:</p> <blockquote><p>Back in February, the <a class="zem_slink" title="The Authors Guild" rel="wikipedia" href="http://en.wikipedia.org/wiki/The_Authors_Guild">Authors Guild</a>, a lobby group representing less than 10,000 writers, argued that the Kindle&#8217;s ability to read text aloud infringed on copyright (it doesn&#8217;t &#8211; and even if it does, the infringement lies not in including the feature, but rather in using it; this is the same principle that makes the VCR legal). <a class="zem_slink" title="Amazon" rel="homepage" href="http://amazon.com/">Amazon</a> folded and agreed to revoke the feature.</p></blockquote> <p>Meredith Filak <a href="http://www.keionline.org/blogs/2009/05/13/kindle-2-vs-reading-disabled-students/">points out some of the issues</a> with restricting text-to-speech functionality:</p> <blockquote><p>But wait, you say. So what? Who&#8217;s affected by all this?</p> <p>Well, aside from a <a href="http://www.readingrights.org/">long list</a> of people who, for one reason or another, cannot physically utilize books, those with text-based <a class="zem_slink" title="Learning disability" rel="wikipedia" href="http://en.wikipedia.org/wiki/Learning_disability">learning disabilities</a> are left out in the cold.</p></blockquote> <p>Personally, I have never like the idea of technical restrictions on what I can do with what I&#8217;ve purchased. Legal restrictions, perhaps &#8211; but technical restrictions, I can unequivocally say, make me far less likely to purchase a product. (This would be why I refuse to purchase <a class="zem_slink" title="Digital rights management" rel="wikipedia" href="http://en.wikipedia.org/wiki/Digital_rights_management">DRM</a>&#8216;d music, since it limits what I can do with the product, even when that use is perfectly legal.) Sure, I get it, you have a business model to protect &#8211; but don&#8217;t expect me to appreciate your attempts to do so! (I don&#8217;t.)</p> <p>Just like with DRM, the existence of &#8220;flags&#8221; to turn on/off features at the behest of someone other than me (the user/customer) is disturbing. What next? Might what I&#8217;ve purchased have more and more usability removed over time? While this might be long-term bad for sales, companies often don&#8217;t think this way, and certainly those preserving old business models (Random House!) certainly prefer to hold onto control for as long as they can, even if Amazon doesn&#8217;t like it too much.</p> <p>Let&#8217;s just say that I&#8217;m even less likely to buy a Kindle now. If I ever do, I&#8217;ll be even more likely to find/create tools (within the limits of the law&#8230;) to &#8220;free&#8221; any books I might buy from restrictive DRM and &#8220;flags&#8221; like this, so as to maximize my technical ability to exercise my full legal rights (including <a class="zem_slink" title="Fair use" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fair_use">fair use</a>). And if I cannot find a way to do this, well, be warned publishers: I might not buy your product at all.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/02/amazon-retreats-on-kindles-text-to.html">Amazon retreats on Kindle&#8217;s text-to-speech issue</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/02/copyright-fight-brewing-over-amazons.html">Copyright Fight Brewing Over Amazon&#8217;s Kindle 2</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://consumerist.com/5252988/amazon-begins-selling-kindle-books-with-text-to-speech-disabled">Amazon Begins Selling Kindle Books With Text To Speech Disabled [Text To Speech]</a> (consumerist.com)</li> <li class="zemanta-article-ul-li"><a href="http://slashdot.org/article.pl?sid=09/05/14/1356253&amp;from=rss">Remote Kill Flags Surface In Kindle</a> (slashdot.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=58c22c83-a330-4e38-9b3b-bf3dbbeadb12" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "10 Alternative Legal Research Sites" https://inpropriapersona.com/articles/10-alternative-legal-research-sites/ Tue, 12 May 2009 23:14:00 +0000 b449f0db8d5c2ea10a36e128fe1afe7a <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 210px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Willamette_University_College_of_Law_Library_stacks.JPG"><img class=" " title="Willamette University College of Law Long Law ..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/6/62/Willamette_University_College_of_Law_Library_stacks.JPG/300px-Willamette_University_College_of_Law_Library_stacks.JPG" alt="Willamette University College of Law Long Law ..." width="210" height="280" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>Looking for alternatives to expensive <a class="zem_slink" title="Legal research" href="http://en.wikipedia.org/wiki/Legal_research" rel="wikipedia">legal research</a> through <a href="http://www.westlaw.com/">Westlaw</a> and <a href="http://www.lexisnexis.com/">LexisNexis</a>? Here&#8217;s a non-exhaustive list of ten alternative sources for legal research (aimed primarily at lawyers and law students) that are useful &#8211; and much cheaper:</p> <p><span style="font-weight: bold;">1. <a href="http://www.quimbee.com/">Quimbee</a></span> &#8211; a case brief database.</p> <p><span style="font-weight: bold;">2. <a href="http://www.precydent.com/">PreCYdent</a></span> &#8211; an &#8220;open law source&#8221; and <a class="zem_slink" title="Legal opinion" href="http://en.wikipedia.org/wiki/Legal_opinion" rel="wikipedia">legal opinion</a> search.</p> <p><span style="font-weight: bold;">3. <a href="http://www.ssrn.com/">SSRN</a></span> &#8211; an ideal source for cutting-edge legal scholarship (and a repository of older articles too).</p> <p><span style="font-weight: bold;">4. <a href="http://www.altlaw.org/">AltLaw</a></span> &#8211; free access to federal <a class="zem_slink" title="Case law" href="http://en.wikipedia.org/wiki/Case_law" rel="wikipedia">case law</a>, but not as up-to-date as other sources.</p> <p><span style="font-weight: bold;">5. <a href="http://www.findlaw.com/">FindLaw</a></span> &#8211; free access to case law, provided by <a href="http://www.westlaw.com/">Westlaw</a>&#8216;s owner.</p> <p><span style="font-weight: bold;">6. <a href="http://www.lexisone.com/">LexisONE</a></span> &#8211; Lexis&#8217; answer to West&#8217;s <a href="http://www.findlaw.com/">FindLaw</a>: the last ten years of state and federal court opinions, and U.S. Supreme Court opinions from 1781 to present, all free.</p> <p><span style="font-weight: bold;">7. <a href="http://www.versuslaw.com/">VersusLaw</a></span> &#8211; inexpensive subscription alternative to LexisNexis and Westlaw (federal and state appellate case law).</p> <p><span style="font-weight: bold;">8. <a href="http://www.fastcase.com/">Fastcase</a></span> &#8211; subscription-based online case law research service, providing access to law, court cases, statutes, and regulations, at reason.</p> <p><span style="font-weight: bold;">9. <a href="http://www.cali.org/">CALI</a></span> &#8211; The Center for Computer-Assisted Legal Instruction provides free online training in most law school subjects.</p> <p><span style="font-weight: bold;">10. Your local law library</span> &#8211; paper and electronic resources, plus librarians who can help:</p> <ul> <li>Find a law library in <a href="http://www.publiclawlibrary.org/find.html">California</a></li> <li>Counties often have <a href="http://www.google.com/search?hl=en&amp;client=firefox-a&amp;rls=org.mozilla%3Aen-US%3Aofficial&amp;hs=YaI&amp;q=county+law+library&amp;btnG=Search">public law libraries</a></li> <li>Many <a href="http://www.google.com/search?hl=en&amp;client=firefox-a&amp;rls=org.mozilla%3Aen-US%3Aofficial&amp;hs=yXI&amp;q=law+school+library&amp;btnG=Search">law schools have law libraries</a> open to the public</li> </ul> <p>For help with conducting legal research, ask a law librarian or consult the Gallagher Law Library&#8217;s <a href="http://lib.law.washington.edu/ref/guides.html">legal research guide</a>. If you are not a lawyer but still need to do legal research, you might also find it useful to read <a href="http://web.archive.org/web/20121025010207/http://www.aallnet.org/sis/lisp/researchbrochure.pdf">How to Research a Legal Problem: A Guide for Non-Lawyers</a>.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/open-access-law.html">Open Access Law</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.killerstartups.com/Web20/fastcase-com-legal-information-on-the-web">FastCase.com &#8211; Legal Information On The Web</a> (killerstartups.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/06/social-science-research-network-ssrn.html">Social Science Research Network (SSRN)</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.techcrunch.com/2009/03/10/law-20-jd-supra-frees-legal-content/">Law 2.0: JD Supra Frees Legal Content</a> (techcrunch.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=44fa29e5-fd3d-498b-9651-0824d8850b81" alt="" /></div> "Are Westlaw and LexisNexis simply selling “free” information?" https://inpropriapersona.com/articles/are-westlaw-and-lexisnexis-simply-selling-free-information/ Tue, 12 May 2009 03:45:00 +0000 b86b3b61ec77d106c5f88df076017dca <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 250px;"><a href="http://www.flickr.com/photos/37117906@N00/431413274"><img style="border:medium none;display:block;" src="http://farm1.static.flickr.com/173/431413274_521c8a89d9_m.jpg" alt="Lexis vs Westlaw" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/37117906@N00/431413274">mattlary</a> via Flickr</span></p> <p><a href="http://www.citypages.com/2009-04-29/news/westlaw-rises-to-legal-publishing-fame-by-selling-free-information">Minneapolis News &#8211; Westlaw rises to legal publishing fame by selling free information</a>:</p> <blockquote><p>West makes its money by selling free, public information &#8211; specifically, court documents &#8211; to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant <a class="zem_slink" title="NYSE: ANF" rel="stockexchange" href="http://finance.yahoo.com/q?s=ANF">Abercrombie and Fitch</a>.</p></blockquote> <p>The article goes on to discuss interesting ideas for businesses operating in today&#8217;s economy: &#8220;find a niche with growth potential,&#8221; &#8220;organize information to make it useful,&#8221; &#8220;the Internet is a distribution model &#8211; not a product,&#8221; &#8220;turn words into math, &#8220;separate the signal from the noise,&#8221; &#8220;computers can&#8217;t do everything,&#8221; &#8220;treat content like patented material,&#8221; &#8220;print&#8217;s not dead, it just needs online help.&#8221;</p> <p>An absolutely key point that I think the article makes through its examples and discussions is exactly the opposite of the idea that &#8220;West makes its money by selling free, public information.&#8221; When one looks at the business model more closely, that is exactly what West <span style="font-style:italic;">no longer does</span>. (Except to lawyers who have yet to adapt, I suppose.) Instead, what it really sells is the organization, signal-vs.-noise separation, and the &#8220;online help&#8221; of human editors who add value to the &#8220;free, public information&#8221; that is the foundation of West&#8217;s business.</p> <p>Much as I love them, many other resources providing <a href="https://inpropriapersona.com/2009/04/open-access-law.html">open access to legal materials</a> facilitate that foundational access, but do not yet add the extra layer of value that is why people pay West and Lexis so much money. (Sometimes that extra value is not necessary, of course, so frugal lawyers should always consider when it&#8217;s worth paying for otherwise available materials.)</p> <p>But, really, this is a strong, pro-business <a class="zem_slink" title="Public policy" rel="wikipedia" href="http://en.wikipedia.org/wiki/Public_policy">public-policy</a> argument in favor of facilitating dissemination of foundational data and information: it makes it possible to create new <a class="zem_slink" title="Business model" rel="wikipedia" href="http://en.wikipedia.org/wiki/Business_model">business models</a> based on adding value to that information. <a class="zem_slink" title="Google" rel="homepage" href="http://google.com/">Google</a> does this, although it frequently has to fight in various ways to keep its access to that information, as we have seen recently as newspapers &#8211; who perhaps are currently in the business of providing foundational information &#8211; have tried to limit Google&#8217;s ability to add value. Without the foundational data (like news, but also including all the other data out there via the Web), how can Google add any value?</p> <p>Imagine how much less innovation we would have seen if linking constituted <a class="zem_slink" title="Copyright infringement" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright_infringement">copyright infringement</a>, and if &#8220;<a class="zem_slink" title="Fair use" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fair_use">fair use</a>&#8221; was eliminated &#8211; Google and all the value it adds would likely not exist. Whether or not copyright ought to exist in its current form, I think there are strong, pro-business reasons for allowing exceptions to its <a class="zem_slink" title="Monopoly" rel="wikipedia" href="http://en.wikipedia.org/wiki/Monopoly">monopoly</a> reach, and <a href="http://www.citypages.com/2009-04-29/news/westlaw-rises-to-legal-publishing-fame-by-selling-free-information">this article</a> highlights that quite effectively through its examples.</p> <p>In short, I say: (1) as a business, add value to survive and expand, (2) good public policy encourages innovating through new means of adding value, (3) similarly, good public policy makes foundational information (like legal decisions) widely accessible (either proactively or by allowing exceptions to copyright monopolies).</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.socialmediatoday.com/SMC/92486"> Without Fear or Favor: Are You Willing to Pay for a Free Press? </a> (socialmediatoday.com)</li> <li class="zemanta-article-ul-li"><a href="http://googlesystem.blogspot.com/2009/05/googles-competition-is-one-click-away.html"> Google&#8217;s Competition is One Click Away </a> (googlesystem.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.techcrunch.com/2009/04/06/behind-the-aps-plan-to-become-the-webs-news-cop/"> Rob Diana: Behind The A.P.&#8217;s Plan To Become The Web&#8217;s News Cop (via Google Reader) </a> (techcrunch.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/open-access-law.html"> Open Access Law </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/05/viacom-ups-ante-in-youtube-copyright.html">Viacom Ups Ante In YouTube Copyright Spat: Google More Than A Mere Enabler</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/02/making-court-archives-available-to-all.html">Making Court Archives Available to All</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/bad-results-for-google-in-recent-2nd.html"> Bad Results for Google in Recent 2nd Circuit Ruling Over Keywords </a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=30d24f9c-bffa-4481-8c5e-61f886bddd37" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "The Failure of Public WiFi" https://inpropriapersona.com/articles/the-failure-of-public-wifi/ Sun, 10 May 2009 01:45:00 +0000 9e48ae4427f837f57f387dc296cbfd92 <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 160px;"><a href="http://www.daylife.com/image/07mKgYk2wKaMt?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=07mKgYk2wKaMt&amp;utm_campaign=z1"><img style="border:medium none;display:block;" src="http://cache.daylife.com/imageserve/07mKgYk2wKaMt/150x100.jpg" alt="MIAMI BEACH, FLORIDA - OCTOBER 02: Michelle Z..." width="150" height="100" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com/">Daylife</a></span></p> <p><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1399190">SSRN-The Failure of Public WiFi by Eric Fraser</a>:</p> <blockquote><p>This short piece describes the failure of the widespread plans to provide public wireless internet access. It identifies three interrelated types of causes for the near-universal failure of these ambitious plans: regulatory, technical, and economic.</p></blockquote> <p>As the article points out, WiFi &#8211; while incredibly successful for constrained-area use, as in homes and businesses &#8211; has not so far proven very successful when deployed across larger areas. There was once talk of police agencies and similar being able to switch to lower cost, more flexible Wifi-based systems for use in cars, but that has generally not happened. Instead, many are using <a class="zem_slink" title="3G" rel="wikipedia" href="http://en.wikipedia.org/wiki/3G">3G</a> cellular systems, which at least are also commercial, off-the-shelf sort of solutions (<a class="zem_slink" title="King County, Washington" rel="geolocation" href="http://maps.google.com/maps?ll=47.47,-121.84&amp;spn=1.0,1.0&amp;q=47.47,-121.84%20%28King%20County%2C%20Washington%29&amp;t=h">King County, Washington</a>, for example, puts laptops with 3G wireless cards in its police cars).</p> <p>Google&#8217;s experiment near its HQ is an exception, and I think &#8220;<a href="http://sf.meraki.com/">Free the Net</a>&#8221; in San Francisco might qualify as well. Neither are municipally funded, however, and the model has not really been exportable across larger areas.</p> <p>Ultimately, WiFi is an small-scale system, ideal for its purpose, and fun to extend to larger areas. <a class="zem_slink" title="WiMAX" rel="wikipedia" href="http://en.wikipedia.org/wiki/WiMAX">WiMax</a> and 3G are much more scalable, and do not need to rely on so many access points. The density required is simply too high to cover large areas &#8211; I have sometimes had trouble covering an entire house effectively, much less a city block!</p> <blockquote><p>On the supply side, the systems simply could not deliver what proponents promised. Because of WiFi&#8217;s technical and regulatory limitations on frequency and power output, blanketing a city proved to be prohibitively expensive. Outdoor areas and a few buildings could be wired for wireless access, but no one could deliver anywhere-internet using WiFi. Signals from streets could not penetrate large buildings, and property rights prevented municipalities from installing the required tens of thousands of access points inside private buildings throughout a municipality. As a result, public WiFi networks could be used indoors in only a few areas, or in many outdoor locations.</p></blockquote> <p>Sadly, 3G especially comes with costs that many had hoped WiFi might overcome. It is a &#8220;top-down&#8221; networking solution, provided by big companies, and comes with significant bandwidth charges. WiFi seemed like a wonderful, &#8220;bottom-up&#8221; approach that leveraged existing wired bandwidth without added additional wireless costs. It still has potential in many circumstances to be useful, whether it be for cafe settings, easily-deployed home networking, in rural areas without signal-blocking obstacles, or even unlicensed long-range point-to-point networks.</p> <p><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1399190">Fraser&#8217;s article</a> provides more in-depth analysis, including an explanation of the physics at work, the business models, and more ideas about why public WiFi has not succeeded. I recommend it.</p> <p>(Thanks to the <a href="http://lsolum.typepad.com/legaltheory/2009/05/fraser-on-free-public-wifi.html">Legal Theory Blog</a> for pointing me to this.)</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/05/sprint-clearwire-and-wimax.html">Sprint, Clearwire and WiMax</a></li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2007/05/meraki-free-network-san-francisco.html">Meraki &#8220;Free the Network&#8221; San Francisco Project Grows</a></li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2007/06/two-approaches-to-community-wifi.html">Two Approaches to Community WiFi Sharing</a></li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=f8930ca6-8f02-4743-84e4-d10b9ea2a258" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Bringing Better Science to the Courtroom" https://inpropriapersona.com/articles/bringing-better-science-to-the-courtroom/ Tue, 05 May 2009 07:53:00 +0000 19907e31369cb5ebe2306c8934c72ad9 <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 250px;"><a href="http://www.flickr.com/photos/47983324@N00/96149908"><img style="border:medium none;display:block;" src="http://farm1.static.flickr.com/11/96149908_9eb0823c10_m.jpg" alt="The Expert Witnesses" width="240" height="180" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/47983324@N00/96149908">maveric2003</a> via Flickr</span></p> <p>As long as I&#8217;m following the <a href="http://lsolum.typepad.com/legaltheory/2009/05/jurs-on-daubert-cutting-edge-science.html">lead of Lawrence Solum</a> at the Legal Theory Blog, I want to recommend the following new article: <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1362637">Judicial Analysis of Complex &amp; Cutting-Edge Science in the Daubert Era: Epidemiologic Risk Assessment as a Test Case for Reform Strategies by Andrew Jurs</a>. From the abstract:</p> <blockquote><p>One way to bring more science back into the courthouse, or to the judge&#8217;s chambers, is to permit the appointment of a science consultant under a modified <a class="zem_slink" title="Federal Rules of Evidence" rel="wikipedia" href="http://en.wikipedia.org/wiki/Federal_Rules_of_Evidence">Federal Rule of Evidence</a> 706. For an even smaller subset of more complicated cases, advanced science procedures are needed. A science panel approach, using a modified arbitration panel format, or a centralized court of scientific jurisdiction would offer significant advantages to the current <a class="zem_slink" title="Daubert standard" rel="wikipedia" href="http://en.wikipedia.org/wiki/Daubert_standard">Daubert</a> system. Other discrete individual reforms solve other weaknesses in current Daubert analysis.</p></blockquote> <p>This is one I need to read through more carefully, because I think the issue of brining better scientific understanding into the judicial system is an important one. After all, even the most scientifically-literate judge cannot really be expected to have a full understanding of all areas of science. I also believe that, when it comes to <a class="zem_slink" title="Expert witness" rel="wikipedia" href="http://en.wikipedia.org/wiki/Expert_witness">expert testimony</a>, our <a class="zem_slink" title="Adversarial system" rel="wikipedia" href="http://en.wikipedia.org/wiki/Adversarial_system">adversarial system</a> (with &#8220;dueling experts&#8221;) can let the court down. Thus, a different, more independent process for evaluating science would be beneficial.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.schneier.com/blog/archives/2009/05/mathematical_il.html"> Mathematical Illiteracy </a> (schneier.com)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/science/news/2009/02/national-academies-we-need-better-science-in-the-courtroom.ars">National Academies: we need better science in the courtroom</a> (arstechnica.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/02/science-pseudoscience-and-law.html">Science, pseudoscience, and the law</a> (inpropriapersona.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3e54d4a0-46be-454c-9977-2f62ae8aa670" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "IP and Traditional Knowledge" https://inpropriapersona.com/articles/ip-and-traditional-knowledge/ Tue, 05 May 2009 07:46:00 +0000 6d924ff60ca1686a3f3e32d5876ccde3 <p class="zemanta-img" style="float:right;display:block;width:210px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:Batwa2.jpg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/b/bc/Batwa2.jpg/200px-Batwa2.jpg" alt="Batwa Pygmy with traditional bow and arrow." style="border:medium none;display:block;" width="200" height="133" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:Batwa2.jpg">Wikipedia</a></span></p> <p><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1397367">The Uneasy Case for Intellectual Property Rights in Traditional Knowledge by Stephen Munzer, Kal Raustiala</a>:</p> <blockquote><p>Should traditional knowledge—the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes—receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support &#8220;defensive&#8221; protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.</p> </blockquote> <p>I discovered this useful and interesting discussion of the relationship between intellectual property and traditional knowledge thanks to <a href="http://lsolum.typepad.com/legaltheory/2009/05/munzer-raustiala-on-ip-rights-in-traditional-knowledge.html">a pointer from Lawrence Solum</a> at the Legal Theory Blog. As he notes there, this has often been a quite confusing area of the law, and this article does a good job of going through the issues in an understandable and useful way. Recommended reading.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/ssrn-papers-dealing-with-ip-development.html">SSRN Papers Dealing with IP, Development and Innovation</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/scholarly-kitchen.html"> Information as Property from the Scholarly Kitchen </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/against-intellectual-monopoly.html">Against Intellectual Monopoly</a> (inpropriapersona.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/4b71462a-5e1f-4e58-b597-07bb70f96cb6/" title="Reblog this post [with Zemanta]"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=4b71462a-5e1f-4e58-b597-07bb70f96cb6" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related pretty-attribution"></span></div> "10 Hints for Representing Yourself in Court" https://inpropriapersona.com/articles/10-hints-for-representing-yourself-in-court/ Mon, 04 May 2009 03:27:00 +0000 d93df6e0a9d400736c227bb4e53297bf <p><a href="http://www.flickr.com/photos/usnationalarchives/4012259516"><img class="alignright" title="&quot;Atchison County Courthouse&quot; from the National Archives" src="http://farm3.static.flickr.com/2443/4012259516_778ebf1fcb_m.jpg" alt="" width="240" height="162" /></a>It&#8217;s not easy to represent yourself in court. Here are some useful tips that may help with in propria persona/pro se litigation (note that this is not legal advice, and in many cases you are well advised to retain your own attorney):</p> <p><span style="font-weight: bold;">10. Beware <a href="http://en.wikipedia.org/wiki/Case_law">case law</a>!</span> For the non-lawyer, case law is not as useful as are practice guides, legal encyclopedias, and other <a class="zem_slink" title="Secondary source" rel="wikipedia" href="http://en.wikipedia.org/wiki/Secondary_source">secondary sources</a> that summarize and explain the law. Too often I have seen non-lawyers believe that a specific case makes their point a &#8220;slam dunk,&#8221; and then be shocked when the court does not agree. Thus, you should concentrate on resources that describe the law before going to cases. <a href="http://www.nolopress.com/">NOLO press</a> has excellent resources available for a reasonable price. <span style="font-style: italic;">Update: if you need to do legal research but have not done so before, try consulting </span><span style="font-style: italic;"><a href="http://web.archive.org/web/20121025010207/http://www.aallnet.org/sis/lisp/researchbrochure.pdf">How to Research a Legal Problem: A Guide for Non-Lawyers</a>.</span></p> <p><span style="font-weight: bold;">9. The law is often flexible but rarely clear.</span> Many non-lawyers get hung up on &#8220;magic words,&#8221; either in case law, statutes, or <a class="zem_slink" title="Contract" rel="wikipedia" href="http://en.wikipedia.org/wiki/Contract">contracts</a>. Although such parsing can be critical, in many situations, intention and fairness are more much more important points to make with the court &#8211; but only if it also comports with the law.</p> <p><span style="font-weight: bold;">8. Written documentation is critical.</span> While oral contracts can certainly be binding, contracts, agreements, letters, and other <span style="font-style: italic;">written</span> documents are much easier to present and are usually much stronger evidence in court. Even writing down your understanding of a conversation immediately after it occurs can strengthen your case, as can a journal or log of interactions.</p> <p><span style="font-weight: bold;">7. Be nice to the </span><a class="zem_slink" title="Court clerk" rel="wikipedia" href="http://en.wikipedia.org/wiki/Court_clerk">court clerk</a><span style="font-weight: bold;"> and the administrative staff.</span> In many jurisdictions, the court clerk (who collects and processes your court paperwork, among other tasks) can be your best friend. While clerks cannot offer legal advice or suggestions for your case, they can help you meet all the filing and similar formal requirements to properly get your case heard. They can help you understand what the judge wants to know from you and when, and even where to find free or low-cost legal assistance in your community. So be nice to them.</p> <p><span style="font-weight: bold;">6. Less drama, more discovery.</span> There are rarely dramatic courtroom moments, nor does your winning or losing typically depend on them. A case runs through full (though disputed) <a href="http://en.wikipedia.org/wiki/Discovery_%28law%29">discovery</a>. This means in most cases disclosure of the documents and knowledge you have and your opponent has. Evidence is not supposed to be surprising, and &#8220;winning on cross&#8221; is more likely on television. (Thus, see #8, above, about the importance of written documentation.)</p> <p><span style="font-weight: bold;">5. Be patient.</span> Lawsuits, and even criminal trials, take time. There is a great deal of back-and-forth before you ever see the inside of a courtroom. Do not expect to resolve anything quickly if you rely on the judicial process. Speed is not its goal.</p> <p><span style="font-weight: bold;">4. Consider small claims court.</span> If the amount in dispute is low enough, <a class="zem_slink" title="Small claims court" rel="wikipedia" href="http://en.wikipedia.org/wiki/Small_claims_court">small claims court</a> is a much better option. It is faster, less formal, and you are not expected to retain a lawyer (in fact, you usually have to represent yourself). This evens the playing field, especially when dealing with corporations.</p> <p><span style="font-weight: bold;">3. Settle, mediate, negotiate&#8230;</span> all are very often better options than a long, drawn-out court battle that may well go against you. If you can work out something with your opponent that both sides are (un)happy with, you will most likely be better off in the long run. There are professional <a class="zem_slink" title="Mediation" rel="wikipedia" href="http://en.wikipedia.org/wiki/Mediation">mediators</a> who can act as neutral parties, and some courts may even require you to try this first. Consider it seriously as an alternative to litigation.</p> <p><span style="font-weight: bold;">2. Sit in on court proceedings.</span> Most courts are open to the public. Visit cases like yours and see how they are conducted. Go see &#8220;<a href="http://en.wikipedia.org/wiki/Motion_%28legal%29">motions</a>,&#8221; where the really critical &#8211; but often tedious &#8211; stuff happens. If you feel comfortable with the process, everything will go much smoother.</p> <p><span style="font-weight: bold;">1. Hire a lawyer! </span></p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=5d143dd1-082f-4296-8c02-26fc486e219b" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Representing yourself in propria persona" https://inpropriapersona.com/articles/representing-yourself-in-propria-persona/ Mon, 04 May 2009 01:56:00 +0000 1874f7529e5b3330c9930a168e01bbb2 <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 210px;"><a href="http://commons.wikipedia.org/wiki/Image:Berne_Supreme_Court_courtroom.jpg"><img style="border:medium none;display:block;" src="http://upload.wikimedia.org/wikipedia/commons/thumb/c/c9/Berne_Supreme_Court_courtroom.jpg/200px-Berne_Supreme_Court_courtroom.jpg" alt="A small courtroom in the Supreme Court of the ..." width="200" height="150" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:Berne_Supreme_Court_courtroom.jpg">Wikipedia</a></span></p> <p>In the Unites States, <a class="zem_slink" title="Lawsuit" rel="wikipedia" href="http://en.wikipedia.org/wiki/Lawsuit">litigants</a> and criminal defendants generally have the right to represent themselves &#8220;in propria persona&#8221; (often abbreviated &#8220;pro per,&#8221; or referred to by a similar Latin expression, &#8220;<a href="http://en.wikipedia.org/wiki/Pro_se">pro se</a>&#8220;).</p> <p>The right in United States law is deeply entrenched with notions of broad access to justice through the court system. The right is limited in some respects, especially in <a class="zem_slink" title="Appeal" rel="wikipedia" href="http://en.wikipedia.org/wiki/Appeal">appellate</a> cases, but is otherwise quite broad. It is also supplemented by a right to appointed counsel (paid for by the state) in certain cases, under the <a href="http://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitution">Sixth Amendment</a>. (In other situations, like <a class="zem_slink" title="Small claims court" rel="wikipedia" href="http://en.wikipedia.org/wiki/Small_claims_court">small claims court</a>, one is required to represent oneself.)</p> <p>While apparently much cheaper, representing oneself &#8211; especially without legal training &#8211; can be very difficult, both for litigants and defendants and for the court system. It may also prove to a costly choice in the long run. So before you proceed on your own, consider consulting a lawyer first.</p> <p>Here are a few places to learn more:</p> <div style="float:right;margin:10px;"></div> <ul> <li><a href="https://inpropriapersona.com/2009/05/10-hints-for-representing-yourself-in.html">10 Hints for Representing Yourself in Court</a></li> <li><a href="http://www.nolopress.com/">NOLO press</a>: excellent resources and books for those representing themselves.</li> <li><a href="http://www.constitution.org/pro-se/pro-se.htm">Pro se handbook</a>: a guide for representing yourself.</li> <li><a href="http://web.archive.org/web/20120419075346/http://www.perkel.com:80/pbl/prose.htm">Representing Yourself in Court</a> (pro se) &#8211; Pros and Cons</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=03030851-60a9-4178-9389-d55dcee466aa" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Six Small Marketing Steps" https://inpropriapersona.com/articles/six-small-marketing-steps/ Fri, 01 May 2009 22:32:00 +0000 20965abed94d891e262ecdbad59309b7 <p><a href="http://www.abanet.org/genpractice/magazine/2009/mar/GP0309sm.jpg"><img style="float:right;cursor:pointer;width:71px;height:92px;margin:0 0 10px 10px;" src="http://www.abanet.org/genpractice/magazine/2009/mar/GP0309sm.jpg" alt="" border="0" /></a></p> <blockquote><p>Right now, as you read this, someone out there needs the service you provide.</p> <p>&#8211; Aviva Cuyler, <a href="http://www.abanet.org/genpractice/magazine/2009/apr_may/cuyler.html">Small Marketing Steps with Big Impact</a> from GPSolo Magazine</p> </blockquote> <p>I recommend you read through <a href="http://www.abanet.org/genpractice/magazine/2009/apr_may/cuyler.html">this whole article</a>, which has a good deal of useful details and suggestions, along with &#8220;action items&#8221; for each topic. The focus is on marketing yourself as a solo lawyer, but the advice is useful to anyone seeking new business opportunities.</p> <p>Here&#8217;s a quick summary of <a href="http://www.abanet.org/genpractice/magazine/2009/apr_may/cuyler.html">six small steps</a> you can take to better market yourself:</p> <p><span style="font-weight:bold;">1. Write a Plan</span></p> <p>What are your goals? Who are your prospective clients? What kind of money are you seeking? How can you find and engage prospective clients?</p> <p><span style="font-weight:bold;">2. Cultivate Your Existing Network</span></p> <p>Reach out to the people you already know, and don&#8217;t forget family and friends. If you use new technologies like <a class="zem_slink" href="http://twitter.com/" title="Twitter" rel="homepage">Twitter</a>, great, but don&#8217;t forget traditional approaches like sending out holiday cards.</p> <p><span style="font-weight:bold;">3. Don&#8217;t Just Market Yourself, Be an Expert</span></p> <p>Recognize that you are already an expert in your field of practice. Look for opportunities to showcase this expertise. Volunteer, lecture, <a href="https://inpropriapersona.com/2007/09/10-reasons-for-law-student-to-blog.html">start a blog</a>.</p> <p><span style="font-weight:bold;">4. Manage Your Online Footprint</span></p> <p>&#8220;You will be Googled.&#8221; So do something about it by using tools like <a class="zem_slink" href="http://www.ducttapemarketing.com/blog/2009/04/27/google-me-takes-on-a-new-meaning/" title="Google" rel="homepage">Google</a> Profiles, <a class="zem_slink" href="http://www.linkedin.com/" title="LinkedIn" rel="homepage">LinkedIn</a>, and <a class="zem_slink" href="http://www.jdsupra.com/" title="JD Supra" rel="homepage">JD Supra</a>. <a href="https://inpropriapersona.com/2007/09/10-reasons-for-law-student-to-blog.html">Start a blog</a> to showcase your knowledge and add to your online presence.</p> <p><span style="font-weight:bold;">5. Publish, Publish, Publish</span></p> <p>Write articles for trade magazines. The online versions of these articles will be indexed by Google and build your presence, helping people to find you for what you know. And, once again, <a href="https://inpropriapersona.com/2007/09/10-reasons-for-law-student-to-blog.html">blog</a>!</p> <p><span style="font-weight:bold;">6. Ask</span></p> <p>&#8220;You don&#8217;t get what you don&#8217;t ask for, so ask for business.&#8221; Find good wording to avoid acting pushy, but don&#8217;t be afraid to suggest solutions that you can help with.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.ducttapemarketing.com/blog/2009/04/27/google-me-takes-on-a-new-meaning/"> Google Me Takes On a New Meaning </a> (ducttapemarketing.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20090217173327/http://thecustomercollective.com:80/TCC/27735">This Social Media Thing&#8230; Linkedin, Facebook, Twitter&#8230; Where&#8217;s the Value and ROI?</a> (thecustomercollective.com)</li> <li class="zemanta-article-ul-li"><a href="http://specialdee.wordpress.com/2009/04/25/more-notes-from-social-media-marketing/"> More notes from &#8220;Social Media Marketing&#8221; </a> (specialdee.wordpress.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/social-media-for-law-students-and.html"> Social media for law students (and everyone else) </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2007/09/10-reasons-for-law-student-to-blog.html"> 10 Reasons for a Law Student to Blog </a> (inpropriapersona.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/59681a89-0db3-4c7b-961e-9bdb78a1ff72/" title="Reblog this post [with Zemanta]"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=59681a89-0db3-4c7b-961e-9bdb78a1ff72" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related pretty-attribution"></span></div> "Employees Will Find Ways to Route Around Corporate Firewalls" https://inpropriapersona.com/articles/employees-will-find-ways-to-route-around-corporate-firewalls/ Fri, 01 May 2009 06:07:00 +0000 1103882acb04fcdc87090a4b92015c17 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Firewall.png"><img title="An illustration of where a firewall would be l..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/5/5b/Firewall.png/300px-Firewall.png" alt="An illustration of where a firewall would be l..." width="300" height="165" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://www.readwriteweb.com/archives/employees_route_around_corporate.php">Study: Employees Will Find Ways to Route Around Corporate Firewalls &#8211; ReadWriteWeb</a>:</p> <blockquote><p>The study also found that users will go to great lengths to route around corporate networks and often use tools like Gbridge, encrypted <a class="zem_slink" title="Tunneling protocol" rel="wikipedia" href="http://en.wikipedia.org/wiki/Tunneling_protocol">tunneling</a> applications, and various private and public <a class="zem_slink" title="Proxy server" rel="wikipedia" href="http://en.wikipedia.org/wiki/Proxy_server">proxy</a> services to circumvent security protocols, corporate <a class="zem_slink" title="Firewall" rel="wikipedia" href="http://en.wikipedia.org/wiki/Firewall">firewalls</a> and filtering mechanisms. Companies are spending a lot of money on firewalls and filtering products, but in the end, users will always find a way around these.</p></blockquote> <p>For those advising corporate clients, this is a very important notion to keep in mind in terms of <a class="zem_slink" title="Risk management" rel="wikipedia" href="http://en.wikipedia.org/wiki/Risk_management">risk management</a>: technical measures go only so far without buy-in from users and employees, and potential security threats (which sounds more cloak-and-dagger that it often is in reality) can be much more easily be introduced (usually unintentionally) by those within your network than by those on the outside.</p> <p>To solve the human side of the equation, training and education are critical. On the technical side, &#8220;hardening&#8221; inward-facing servers is critical. Do not rely on firewalls alone for protection.</p> <p>I suspect that banning applications or services (such as <a class="zem_slink" title="Social media" rel="wikipedia" href="http://en.wikipedia.org/wiki/Social_media">social media</a>, or even P2P) may be the wrong approach (although from a legal perspective attempting to do so may be important to reduce liability.) Training and education on how to use such tools effectively, securely, and legally may be more effective in the long term, and having users and employees working with your plans (instead of <a class="zem_slink" title="Routing" rel="wikipedia" href="http://en.wikipedia.org/wiki/Routing">routing</a> around your firewall in any way possible) is far more likely to provide real security.</p> <p>My final thought: integrate your legal team, your technical team, plus marketing and business operations together to achieve the best security possible (and to gain other benefits, too!). And don&#8217;t forget to bring in the users, customers, and clients as well, as they are critical stakeholders in any complete security scheme.</p> <p><span style="font-weight: bold;">Related articles</span></p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://kylelacy.com/is-your-goal-growth-empower-your-employees-with-social-media/">Is Your Goal Growth? Empower your Employees with Social Media.</a> (kylelacy.com)</li> <li class="zemanta-article-ul-li"><a href="http://blogs.harvardbusiness.org/cramm/2009/02/running-a-lessrisky-business.html">Help IT Run a Less-Risky Business</a> (blogs.harvardbusiness.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=669fe141-48c6-47da-acd2-d6e95f82b428" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "An Evidence-Based Approach to Law and Science" https://inpropriapersona.com/articles/an-evidence-based-approach-to-law-and-science/ Wed, 29 Apr 2009 23:01:00 +0000 6141f3d05e2879c64c1e5586e9977629 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 200px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/Image:ScientificReview.jpg"><img title="A reviewer at the National Institutes of Healt..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/6/68/ScientificReview.jpg/200px-ScientificReview.jpg" alt="A reviewer at the National Institutes of Healt..." width="200" height="113" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://en.wikipedia.org/wiki/Evidence-based_medicine">John Pfaff</a> has been writing a <a href="http://www.google.com/search?hl=en&amp;domains=http%3A%2F%2Fprawfsblawg.blogs.com&amp;sitesearch=http%3A%2F%2Fprawfsblawg.blogs.com&amp;q=%22Posted+by+jpfaff%22&amp;btnG=Search&amp;sitesearch=http%3A%2F%2Fprawfsblawg.blogs.com">series of articles</a> for <a href="http://prawfsblawg.blogs.com/">PrawfsBlawg</a> over the last month or so, focusing on &#8220;Empirical Legal Scholarship&#8221; (ELS). ELS brings empirical social science research, including especially statistical studies, into the realm of the law. (Law &amp; Economics would be another, related attempt to bring math and the law together.)</p> <p>One of the problems he points out in his introductory piece is the lack of formal training that many legal academics have in statistics (as contrasted with, say, theoretical economists). Certainly most of the lawyers, law students, and law professors I know (though far from all of them) seem to come from a humanities background (with the exception of those working in the patent field, which tends to attract those from a more technical or scientific background). While this often leads to the ability to deal with a wide range of issues in an effective manner, it does make it challenging for some of us (I include myself in this, since despite my background in software development, academically I come from the humanities) to grapple with statistical data in an effective and sophisticated manner.</p> <p>In the courtroom, this is supposed to be solved by the adversarial process, which requires each side to present experts capable of explaining their analyses to a (potentially non-mathematically trained) judge and a law jury. <span style="font-style: italic;">Daubert</span> and <span style="font-style: italic;">Frye</span> increasingly put the initial screening burden on judges, and this has increased the benefit (and, I think the need) for judges to grasp sophisticated analyses presented by experts. I have seen this struggle in the employment discrimination context (where courts have grappled with how to deal with data that may or may not demonstrate systemic discrimination) and, perhaps most notably, in the torts context, especially when dealing with pharmaceuticals (how should epidemiological data be treated, for example?)</p> <p>Professor Pfaff <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/04/how-the-law-and-the-sciences-think-about-knowledge.html">writes</a>:</p> <blockquote><p>Empirical evidence has long posed a problem to the adversarial, common law system. As Tal Golan points out in <a href="http://www.amazon.com/gp/product/0674025806?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0674025806">Laws of Men and Laws of Nature</a>, courts have struggled for at least three centuries with how to use complex scientific evidence in the courtroom, and the problem is only going to get worse in the years to come. Lay judges and lay jurors have never had the epistemic competence to understand technical scientific and empirical evidence, and thanks to the technological revolution of the past three decades the volume and sophistication of such evidence is only going to grow.</p></blockquote> <p><span style="font-style: italic;">(Incidentally, Tal Golan is the primary professor I&#8217;ll be working with when I begin in the <a class="zem_slink" title="History of science" rel="wikipedia" href="http://en.wikipedia.org/wiki/History_of_science">History of Science</a> PhD program at <a class="zem_slink" title="University of California, San Diego" rel="geolocation" href="http://maps.google.com/maps?ll=32.881,-117.238&amp;spn=1.0,1.0&amp;q=32.881,-117.238%20%28University%20of%20California%2C%20San%20Diego%29&amp;t=h">UCSD</a> in the fall.)</span></p> <p>Outside the courtroom, in the world of law journals, it can be hard for student editors untrained in statistics and data analysis, to differentiate good empirical studies in legal articles from bad ones. Adding in <a class="zem_slink" title="Peer review" rel="wikipedia" href="http://en.wikipedia.org/wiki/Peer_review">peer review</a> might arguably help, but only if the &#8220;peers&#8221; involved themselves have a background in such empirical research. Otherwise, law professors may be no better than young law students in dealing with statistics—and, given that many younger students are more comfortable with technology (having grown up with Excel, for example), may even be worse at it.</p> <p>Professor Pfaff believes that &#8220;[s]ome sort of reform is inevitable, and I think a shift towards courtroom-EBP is the way to go.&#8221; This means focusing on an &#8220;evidence-based&#8221; policy (similar to <a href="http://en.wikipedia.org/wiki/Evidence-based_medicine">evidence-based medicine</a>), as he describes in <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/04/the-path-ahead-evidence-based-empirical-work.html">The Path Ahead: Evidence Based Empirical Work</a>. The point is to apply the <a class="zem_slink" title="Scientific method" rel="wikipedia" href="http://en.wikipedia.org/wiki/Scientific_method">scientific method</a> and to critically evaluate the quality of evidence, data, and studies.</p> <p>&nbsp;</p> <p>In addition to looking to evidence and its quality, this path ahead means doing overview (and synthesis) studies to confirm a view of the big picture, instead of extrapolating from individual studies to larger answers without checking alternatives across various studies and approaches.</p> <p>I recommend reading the <a href="http://www.google.com/search?hl=en&amp;domains=http%3A%2F%2Fprawfsblawg.blogs.com&amp;sitesearch=http%3A%2F%2Fprawfsblawg.blogs.com&amp;q=%22Posted+by+jpfaff%22&amp;btnG=Search&amp;sitesearch=http%3A%2F%2Fprawfsblawg.blogs.com">series of articles</a> (and the comments) and <a href="http://prawfsblawg.blogs.com/">PrawfsBlawg</a>.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2bf7f9f3-c691-43cd-af19-f46411e33e23" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "NIH Open Access Continues to be Attacked" https://inpropriapersona.com/articles/nih-open-access-continues-to-be-attacked/ Wed, 29 Apr 2009 01:51:00 +0000 2fae8b4a0ea095eb8481f20065a0413a <p class="zemanta-img" style="float:right;display:block;width:210px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:US-NLM-PubMed-Logo.svg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/f/fb/US-NLM-PubMed-Logo.svg/200px-US-NLM-PubMed-Logo.svg.png" alt="Logo for PubMed, a service of the National Lib..." style="border:medium none;display:block;" width="200" height="71" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:US-NLM-PubMed-Logo.svg">Wikipedia</a></span></p> <p><a href="http://web.archive.org/web/20110812121105/http://marketplace.publicradio.org/display/web/2009/04/28/pm_copyright/">Marketplace: Publicly funded research for a price</a>:</p> <blockquote><p>Publicly funded research doesn&#8217;t seem so public when the public has to pay to read the results in a journal. A proposed law would help publishing companies preserve their business models, but it would limit public access to the research.</p> </blockquote> <p>Publishers continue to resist the <a class="zem_slink" href="http://en.wikipedia.org/wiki/Open_Access_movement" title="Open Access movement" rel="wikipedia">open-access movement</a>, it seems. This <a class="zem_slink" href="http://www.marketplace.org" title="Marketplace (radio program)" rel="homepage">Marketplace</a> (as heard on public radio) report does a decent job of laying out some of the issues. The comments are worth reading as well.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://scholarlykitchen.sspnet.org/2009/03/02/framing-the-open-access-debate/">Framing the Open Access Debate</a> (scholarlykitchen.sspnet.org)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/open-access-policy-flourishes-nih.html"> Open-access policy flourishes at NIH </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20120728111509/http://www.lessig.org/blog/2009/03/john_conyers_and_open_access.html">John Conyers and Open Access</a> (lessig.org)</li> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/03/03/proposal-to-allow-pu.html">Proposal to allow publishers to charge for access to tax-funded research</a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="http://opendotdotdot.blogspot.com/2009/03/free-our-books-extending-open-access.html">Free Our Books: Extending Open Access</a> (opendotdotdot.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/science/news/2009/02/congress-may-slam-door-on-nih-research-open-access-policy.ars">Congress may slam door on NIH research open access policy</a> (arstechnica.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/ba4b71ef-80e0-4e42-92ce-4b1ac576a176/" title="Reblog this post [with Zemanta]"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=ba4b71ef-80e0-4e42-92ce-4b1ac576a176" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related pretty-attribution"></span></div> "Reusable Example Privacy Policy and Terms of Use" https://inpropriapersona.com/articles/reusable-example-privacy-policy-and-terms-of-use/ Tue, 28 Apr 2009 08:48:00 +0000 32a88dabb0924b5dff91a3180e5c2b7a <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 125px" class="wp-caption alignright"><a href="http://www.crunchbase.com/product/wordpress"><img class="zemanta-img-configured" title="Image representing WordPress as depicted in Cr..." src="http://www.crunchbase.com/assets/images/resized/0001/6548/16548v2-max-450x450.png" alt="Image representing WordPress as depicted in Cr..." width="125" height="125" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> </div> <p>So you&#8217;ve decided your new Web site needs a privacy policy or <a class="zem_slink" title="Terms of service" href="http://en.wikipedia.org/wiki/Terms_of_service" rel="wikipedia">terms of service</a>. Why? Perhaps you are collecting personal information, or providing a service that visitors may come to depend on. (Or maybe you&#8217;re just a lawyer and obsessively use disclaimers, waivers, and contracts throughout your daily life. If you make your co-rec soccer opponents sign waivers before the game starts, I&#8217;m talking about you.)</p> <p>Rather than write such documents from scratch, it can help to base it on someone else&#8217;s work. But while you can read most anyone&#8217;s policies and terms, technically such documents are covered by <a class="zem_slink" title="Copyright" href="http://en.wikipedia.org/wiki/Copyright" rel="wikipedia">copyright</a> protections just like your average <a class="zem_slink" title="Great American Novel" href="http://en.wikipedia.org/wiki/Great_American_Novel" rel="wikipedia">Great American Novel</a> (though a good deal less entertaining, I hope).</p> <p>One might think that such documents are &#8220;<a href="http://lawschool.ekris.org/2008/05/copyright-useful-article-test.html">useful articles</a>,&#8221; and &#8211; like a <a href="http://scholar.google.com/scholar_case?case=1003724633672058808">bicycle rack/sculpture that was deemed too useful to be covered by a design copyright</a> &#8211; should not be copyrightable. But, just like software, they are.</p> <p>Fortunately, <a href="http://www.wordpress.com/">WordPress</a> and parent company <a href="http://automattic.com/">Automattic</a>, famous providers of blogging software (which I <span style="text-decoration: line-through;">don&#8217;t</span> <strong>now do </strong>use, incidentally), have come to your rescue. Both their <a href="http://en.wordpress.com/tos/">Terms of Use</a> and their <a href="http://automattic.com/privacy/">Privacy Policy</a> are covered by a <a href="http://creativecommons.org/licenses/by-sa/2.5/">Creative Commons &#8220;attribution-share alike&#8221; license</a>:</p> <ul> <li><a href="http://en.wordpress.com/tos/">Terms of Use</a> for WordPress.com</li> <li>Automattic&#8217;s <a href="http://automattic.com/privacy/">Privacy Policy</a></li> </ul> <p>This makes them perfect to reuse and repurpose (but do not do so without seeking legal counsel as part of the process, since they need to be customized to your specific needs.) Such a starting place can make the whole process easier and more understandable (and therefore cheaper, since legal counsel is quite expensive). Kudos to Automattic and WordPress on this.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20090602021445/http://blog.futurelab.net:80/2009/02/licensing_your_dissertation_un.html">Licensing Your Dissertation under Creative Commons</a> (futurelab.net)</li> <li class="zemanta-article-ul-li"><a href="http://geodatapolicy.wordpress.com/2011/10/22/mobile-marketing-association-proposes-mobile-application-privacy-policy-framework-info-law-group/">Mobile Marketing Association Proposes Mobile Application Privacy Policy Framework : Info Law Group</a> (geodatapolicy.wordpress.com)</li> </ul> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://geodatapolicy.wordpress.com/2011/10/22/mobile-marketing-association-proposes-mobile-application-privacy-policy-framework-info-law-group/">Mobile Marketing Association Proposes Mobile Application Privacy Policy Framework : Info Law Group</a> (geodatapolicy.wordpress.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2e850cfc-cac5-4a0c-97f8-3e19f38ba486" alt="" /></div> "Music Pirates in Canada!" https://inpropriapersona.com/articles/music-pirates-in-canada-american-publishers-say-they-are-suffering-by-copyright-violations-there-steps-taken-for-redress/ Sun, 26 Apr 2009 20:32:00 +0000 59db4d46569d4153c3c2118cb2acb3f1 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 200px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/Image:CuiVil3_2p204.png"><img title="Top two systems of p." src="http://upload.wikimedia.org/wikipedia/commons/thumb/4/4c/CuiVil3_2p204.png/200px-CuiVil3_2p204.png" alt="Top two systems of p." width="200" height="134" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><strong>&#8220;MUSIC PIRATES IN CANADA: American Publishers Say They Are Suffering by Copyright Violations There &#8211; Steps Taken for Redress&#8221;</strong></p> <p>While this sounds like a headline ripped from a newspaper of today, it actually comes from an <a title="1897 article in the New York Times" href="http://query.nytimes.com/gst/abstract.html?res=9A07E7DB1F39E433A25750C1A9609C94669ED7CF" target="_blank">1897 article in the New York Times</a>. Enterprising Canadians were selling the sheet music of popular songs via mail to Americans for 5 &#8211; 10 cents, undercutting the 20 &#8211; 50 cents charged by <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright</a> owners:</p> <blockquote><p>&#8220;Canadian pirates&#8221; is what the music dealers call publishing houses across the line who are flooding this country, they say, with spurious editions of the latest copyrighted popular songs. They use the mails to reach purchasers, so members of the American Music Publishers&#8217; Association assert, and as a result the legitimate music publishing business of the United States has fallen off 50 per cent in the past twelve months.</p></blockquote> <p>Jake Brown of <a title="Glorious Noise" href="http://www.gloriousnoise.com/links/2009/music_pirates_in_canada_1897.php" target="_blank">Glorious Noise</a>, one of the blogs (along with <a href="http://idolator.com/5220121/music-piracy-in-1897">Idolator</a>, <a title="BestActEver" href="http://web.archive.org/web/20121002075923/http://www.bestactever.com:80/2009/04/26/the-long-war-music-piracy-in-1897-nytimes/" target="_blank">BestActEver</a> and <a title="boing boing" href="http://www.boingboing.net/2009/04/26/canadian-music-pirat.html" target="_blank">boing boing</a>) to rediscover this intriguing article in the archives of the New York Times, notes:</p> <blockquote><p>According to this handy <a href="http://www.westegg.com/inflation/">inflation calculator</a>, &#8220;What cost $.40 in 1897 would cost $10.22 in 2008.&#8221; That&#8217;s kinda a lotta money for sheet music, isn&#8217;t it?</p></blockquote> <p>The United States has a long history of not respecting the intellectual property of those from other countries, but this is the the earliest example I&#8217;ve seen that illustrates the U.S. shift from copyright scofflaw (we refused to sign <a href="http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works">Berne</a> for <a href="http://en.wikipedia.org/wiki/Berne_Convention_Implementation_Act_of_1988">ages</a>, for example, and for many years U.S. publishers would <a href="http://www.copyrighthistory.org/cgi-bin/kleioc/0010/exec/ausgabe/%22us_1837c%22">republish British novels without paying any royalties</a>).</p> <p>It also interestingly illustrates what I thought was a very early use of the term &#8220;pirate&#8221; to describe a copyright infringer. Apparently, though, this usage goes back much earlier than 1897, according to Ben Zimmer at the <a href="http://www.visualthesaurus.com/cm/wordroutes/1815/">Visual Thesaurus</a>:</p> <blockquote><p>From early on, the words <em>pirate</em> and <em>piracy</em> were extended to other types of pillaging. As part of an extended rant against derivative poets in his 1603 pamphlet <a href="http://web.archive.org/web/20141224203957/http://darkwing.uoregon.edu:80/%7Erbear/yeare.html" target="_blank"><em>The Wonderfull Yeare</em></a>, Thomas Dekker calls upon the Muses to &#8220;banish these <em>Word-pirates,</em> (you sacred mistresses of learning) into the gulfe of <em>Barbarisme</em>.&#8221; The metaphor of intellectual piracy took hold in early modern English, with plagiarizers and unauthorized copiers of manuscripts compared to robbers on the high seas. Illegally reproduced books came to be known as &#8220;pirate editions&#8221; by the eighteenth century, long before online file-sharing made the piracy of copyrighted material child&#8217;s play.</p></blockquote> <p>So, like many things, the current battle between distributors and owners is hardly new.</p> <p><span style="font-style: italic;">I would also like to note the benefits to historical research of free access to archives like those of the New York Times. Great stuff!</span></p> <p><span style="font-weight: bold;">Related articles</span></p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://freakonomics.blogs.nytimes.com/2009/03/02/lawrence-lessig-answers-your-questions-on-copyright-corruption-and-congress/">Lawrence Lessig Answers Your Questions on Copyright, Corruption, and Congress</a> (freakonomics.blogs.nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.usnews.com/articles/opinion/2008/12/22/should-online-file-sharing-be-strongly-prosecuted.html%3Fs_cid%3Drss%3Ashould-online-file-sharing-be-strongly-prosecuted&amp;a=2364973&amp;rid=7a01f0f8-11c5-4e89-b832-ac7d0f53b9e6&amp;e=191908571cf7449ddb335be76e040186">Should Online File Sharing be Strongly Prosecuted?</a> (usnews.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.plagiarismtoday.com/2009/01/14/a-word-on-copyright-misnomers/">A Word on Copyright Misnomers</a> (plagiarismtoday.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20090316135208/http://www.financialpost.com:80/story.html?id=1386349">Publishers warm to new technology</a> (financialpost.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3fa81cb1-0fc5-434e-945a-0fc50f9bd0b9" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Lawyers and Technology: The Mystery of Metadata" https://inpropriapersona.com/articles/lawyers-and-technology-the-mystery-of-metadata/ Thu, 23 Apr 2009 23:08:00 +0000 28b4dc138028289769e0a0df70ef9a45 <div class="zemanta-img" style="margin: 1em; display: block; float: right; width: 250px;"><a href="http://www.flickr.com/photos/20197422@N00/337355032"><img style="display: block;" src="http://farm1.static.flickr.com/70/337355032_d321b86824_m.jpg" alt="Concord, New Hampshire" width="240" height="160" /></a></p> <p class="zemanta-img-attribution" style="font-size: .8em;">Image by <a href="http://www.flickr.com/photos/20197422@N00/337355032">StarrGazr</a> via Flickr</p> </div> <p>Jim Calloway <a href="http://jimcalloway.typepad.com/lawpracticetips/2009/04/new-hampshire-bar-issues-metadata-ethics-opinion.html">writes about a new opinion</a> by the New Hampshire Bar Ethics Committee:</p> <blockquote><p>The New Hampshire <a class="zem_slink" title="Bar association" href="http://en.wikipedia.org/wiki/Bar_association" rel="wikipedia">Bar Association</a> issued <a href="http://www.nhbar.org/uploads/pdf/EthicsOpinion2008-9-4.pdf">Ethics Committee Opinion 2008-2009/4</a> on April 16, 2009. I&#8217;ve written at length on this subject and one can <a href="http://jimcalloway.typepad.com/lawpracticetips/2008/11/the-ethics-of-metadata-2008.html">go here to review my take on all previous bar ethics opinions</a> about <a class="zem_slink" title="Metadata" href="http://en.wikipedia.org/wiki/Metadata" rel="wikipedia">metadata</a>. It still bothers me that many of these opinions assume (A) that removing metadata is an expensive, mysterious and sometimes impossible process when in fact it is fairly simple to make sure confidential client information is not disclosed and (B) looking at a document&#8217;s metadata is often intended to ferret out confidential client information when it is generally looking at routine things like a document&#8217;s word count.</p></blockquote> <p>The whole post is worth reading, but I think it&#8217;s important for all of us involved in technology to remember that many people &#8211; including well-educated lawyers &#8211; received their education in a time before <a class="zem_slink" title="Twitter" href="http://twitter.com/" rel="homepage">Twitter</a>, before <a class="zem_slink" title="LinkedIn" href="http://www.linkedin.com/" rel="homepage">LinkedIn</a>, and even before the widespread use of computers in legal research at all.</p> <p>This is true of judges and juries, of course, so it&#8217;s always important as a litigator to educate your audience if technology is an issue in the case.</p> <p>But equally important for all law practitioners is that, even outside the courtroom, may of those involved in the law do not understand the technology they use, such as &#8220;metadata&#8221; in Word &#8211; a concept that seems esoteric until you realize, as Mr. Calloway points out, that this can mean simple things like the word count of a document, and that removing confidential metadata (such as &#8220;track changes&#8221;) is something anyone using such features ought to know about. (Not that it isn&#8217;t easy to slip-up &#8211; it is &#8211; but then again, it&#8217;s also easy to miss a deadline, and that could easily be malpractice).</p> <div class="zemanta-related"> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://arnoldit.com/wordpress/2009/01/08/non-techies-and-metadata/">Non-Techies and Metadata</a> (arnoldit.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.slideshare.net/rlovinger/metadata-strategies-and-tools">Metadata Strategies And Tools</a> (slideshare.net)</li> <li class="zemanta-article-ul-li"><a href="http://healthblawg.typepad.com/healthblawg/2009/03/social-media-for-lawyers.html">David Harlow reprises Social Media for Lawyers presentation at Boston University</a> (healthblawg.typepad.com)</li> <li class="zemanta-article-ul-li"><a href="http://healthblawg.typepad.com/healthblawg/2009/01/marketing-your-legal-practice-using-social-media.html">Marketing Your Legal Practice Using Social Media</a> (healthblawg.typepad.com)</li> </ul> </div> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="float: right;" src="http://img.zemanta.com/pixy.gif?x-id=741a85ea-234b-4871-a6dd-6a13ea1315f3" alt="" /></div> "Libraries and Fair Use" https://inpropriapersona.com/articles/libraries-and-fair-use/ Thu, 23 Apr 2009 22:45:00 +0000 3fec6b0452f2c27526d6a107af49f753 <p><a href="http://portal.unesco.org/culture/en/ev.php-URL_ID=39130&amp;URL_DO=DO_TOPIC&amp;URL_SECTION=201.html"><img style="display:inline;border-width:0;margin:5px;" src="http://www.unescobkk.org/uploads/pics/affiche_01.jpg" align="right" border="0" /></a> Simon Chester at <a href="http://www.slaw.ca/">Slaw.ca</a> has an <a href="http://www.slaw.ca/2009/04/22/world-book-and-copyright-day/">excellent article</a> up about <a href="http://portal.unesco.org/culture/en/ev.php-URL_ID=39130&amp;URL_DO=DO_TOPIC&amp;URL_SECTION=201.html">World Book and Copyright Day</a>. Of particular importance, I think, is the point the <a class="zem_slink" title="Fair use" href="http://en.wikipedia.org/wiki/Fair_use" rel="wikipedia">fair use</a> (an exception to the regular restrictions on use provided for under <a class="zem_slink" title="Copyright" href="http://en.wikipedia.org/wiki/Copyright" rel="wikipedia">copyright law</a>):</p> <blockquote> <p>For libraries, and the people who use libraries, it is the exceptions and limitations to the legal protections granted to rightsholders that provide the basic mechanism for access to copyrighted content. “The role of librarians is to protect and promote access to knowledge and learning materials”, said Rilwanu Abdulsalami, Deputy University Librarian at Kaduna State University in Nigeria. “One of the key ways to achieve this is through well designed exceptions and limitations. Where the law is inadequate and needs to be changed, we will advocate for that change.”</p> </blockquote> <p>I recommend you read the <a href="http://www.slaw.ca/2009/04/22/world-book-and-copyright-day/">whole post</a>.</p> "Open-Access Law" https://inpropriapersona.com/articles/open-access-law/ Mon, 20 Apr 2009 00:09:00 +0000 f467da7634a1b197ad2225e8f09ab0f5 <p>The Lawyers Weekly (of Canada) writes about <a href="http://web.archive.org/web/20130411175427/http://www.lawyersweekly.ca/index.php?section=article&amp;volume=28&amp;number=46&amp;article=4">free vs. paid online legal research tools</a>:</p> <blockquote><p>Cost-conscious lawyers may ask themselves: Can we get by using only freely available research tools?</p> <p>Chances are, the answer today is no. But free legal research tools continue to improve as new ones emerge and legal researchers everywhere are better off for them.</p> <p>The low cost, easy accessibility and speed of popular search engines, particularly Google, makes them a natural destination for researchers of all stripes.</p></blockquote> <p>As the article points out, the paid services (in the U.S., that would primarily be <a class="zem_slink" title="Westlaw" href="http://en.wikipedia.org/wiki/Westlaw" rel="wikipedia">Westlaw</a> and <a class="zem_slink" title="LexisNexis" href="http://en.wikipedia.org/wiki/LexisNexis" rel="wikipedia">LexisNexis</a>) add very useful, human-created content, such as citation evaluation and headnotes that help researchers quickly and effectively evaluate case law. A newer, more reasonably priced competitor is <a href="http://www.fastcase.com">Fastcase</a>. It too is not dedicated to open access, but nonetheless increases access to case law due to its much lower prices and still-effective editorial content and categorization.</p> <p>&#8220;Free&#8221; access is not quire the same as &#8220;open&#8221; access: open access, <a href="http://www.aallnet.org/products/pub_sp0504.asp">according to Paul George</a>, is &#8220;the electronic publication of scholarly work that is available for free without copyright constraints other than attribution.&#8221; Free resources tend not to meet this level of copyright freedom in most spheres. Case law, however, essentially meets this requirement wherever you get it (at least, federal case law doesn&#8217;t &#8211; some states <em>may</em> attempt to limit distribution, although I doubt that such a restriction would hold up under close scrutiny), since you can use all the content (not including added editorial content, of course) with only a case cite as attribution.</p> <p>For more on open access to law, read the <a href="http://legalresearchplus.com/2009/02/20/durham-statement-on-open-access-to-legal-scholarship/">Durham Statement on Open Access to Legal Scholarship</a>, visit the 2006 Symposium on <a href="http://web.archive.org/web/20090516160320/http://www.lclark.edu/dept/blaw/springsympos2006.html">Open Access Publishing and the Future of Legal Scholarship</a> from Lewis &amp; Clark Law School, and the <a href="http://sciencecommons.org/projects/publishing/oalaw/">Open Access Law Program</a>.</p> <h3>So where does one go to get free or open access to case law?</h3> <p>For Canadian legal research, I personally find <a class="zem_slink" title="Free Access to Law Movement" href="http://en.wikipedia.org/wiki/Free_Access_to_Law_Movement" rel="wikipedia">CanLII</a> to be highly useful and effective, and much prefer its search to Westlaw or LexisNexis (of course, there is less Canadian case law to search through than there is U.S. case law).</p> <p>In the United States, <a class="zem_slink" title="AltLaw" href="http://en.wikipedia.org/wiki/AltLaw" rel="wikipedia">AltLaw</a> (drawing on freely available data stored at <a href="http://bulk.resource.org">bulk.resource.org</a>) provides access to a great deal of openly available federal  . Content lags by several years, however, which makes it less useful for preparing actual briefs (not using one of the big two is almost malpractice currently). In fact, the content behind AltLaw is often much more readily found by searching Google, which indexes all of AltLaw&#8217;s content (as hosted by bulk.resource.org). Searches for case cites or case names often turns up results, if the case is old enough. In fact, Google is often successful even with more modern cases, either through links to Wikipedia or, especially with <a class="zem_slink" title="Supreme court" href="http://en.wikipedia.org/wiki/Supreme_court" rel="wikipedia">Supreme Court</a> cases, directly to the case.</p> <p><a class="zem_slink" title="FindLaw" href="http://en.wikipedia.org/wiki/FindLaw" rel="wikipedia">FindLaw</a> provides free access to a great deal of up-to-date caselaw, but is in a delicate position since it is owned by the same company that owns Westlaw. While free, it is not focused on providing &#8220;open access&#8221; to research in the same way as AltLaw or CanLII. It is nonetheless quite effective at opening up legal research more generally.</p> <p>Many of these U.S. resources focus primarily on federal law. State case law is much more difficult to find through open-access resources, and I still do not have a good source for general state legal research other than FindLaw.</p> <div class="zemanta-related"> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles by Zemanta</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://arnoldit.com/wordpress/2009/03/02/potential-trouble-for-lexisnexis-and-westlaw/">Potential Trouble for LexisNexis and Westlaw</a> (arnoldit.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.techcrunch.com/2009/03/10/law-20-jd-supra-frees-legal-content/">Law 2.0: JD Supra Frees Legal Content</a> (techcrunch.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.hyperorg.com/blogger/2009/02/21/law-libraries-ask-for-open-access/">Law libraries ask for open access</a> (hyperorg.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/02/making-court-archives-available-to-all.html">Making Court Archives Available to All</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/06/social-science-research-network-ssrn.html">Social Science Research Network (SSRN)</a> (inpropriapersona.com)</li> </ul> </div> "Copyright as Antidote to DRM" https://inpropriapersona.com/articles/copyright-as-antidote-to-drm/ Fri, 17 Apr 2009 15:15:00 +0000 c769ba99f480f8eccda7a876d3dfe95a <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 210px;"><a href="http://commons.wikipedia.org/wiki/Image:DRM_protest_Boston_DefectiveByDesign.jpg"><img style="border:medium none;display:block;" src="http://upload.wikimedia.org/wikipedia/commons/thumb/8/8b/DRM_protest_Boston_DefectiveByDesign.jpg/200px-DRM_protest_Boston_DefectiveByDesign.jpg" alt="A man protests Digital Rights Management in Bo..." width="200" height="150" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:DRM_protest_Boston_DefectiveByDesign.jpg">Wikipedia</a></span></p> <p>Consider this idea: without copyright protection for digital media, we would have even more <a class="zem_slink" title="Digital rights management" rel="wikipedia" href="http://en.wikipedia.org/wiki/Digital_rights_management">Digital Rights Management</a>. Why? Because without it, recouping up-front investment without restricting distribution would be difficult or impossible. Since I often see a confluence of beliefs around those who hate DRM and those who hate <a class="zem_slink" title="Copyright" rel="wikipedia" href="http://en.wikipedia.org/wiki/Copyright">copyright laws</a> (I myself fall into this belief system in certain circumstances), I think this is an important point to remember.</p> <p>I do think that a <a href="https://inpropriapersona.com/2009/03/against-intellectual-monopoly.html">reasonable argument</a> can be made that in many situations, especially in regards to mechanical devices that take time and resources to <a class="zem_slink" title="Reverse engineering" rel="wikipedia" href="http://en.wikipedia.org/wiki/Reverse_engineering">reverse engineer</a> and reproduce, that &#8220;first-mover&#8221; returns (as just one example) are sufficient to recoup initial costs (especially if the business is handled in a savvy way) and that therefore <a class="zem_slink" title="Patent" rel="wikipedia" href="http://en.wikipedia.org/wiki/Patent">patent protection</a> is <a href="https://inpropriapersona.com/2009/03/economists-abolish-copyright-patents-to.html">not necessary to encourage innovation</a>.</p> <p>But what about when reproduction costs approach zero, as with software or <a class="zem_slink" title="E-book" rel="wikipedia" href="http://en.wikipedia.org/wiki/E-book">electronic books</a>, but development costs are potentially high? (Despite <a class="zem_slink" title="Open source" rel="wikipedia" href="http://en.wikipedia.org/wiki/Open_source">open-source</a> success stories, software development costs money, and authors of novels spend real time &#8211; and money &#8211; writing).</p> <p>Alternative business models might help if we lacked copyright protection (subscriptions for the latest software patches, selling software support services, or other creative business approaches), but I suspect at least some businesses would decide that DRM would be a good model.</p> <p>After all, without legal protections, the only way to limit copying would be through private measures. DRM is one such private method. This would lead, I suspect, lead to an &#8220;arms race&#8221; between hackers/crackers and publishers, but the pay off for publishers in gaining additional monopoly time through technical measures would be large enough for be worthwhile. The user market might push against too much restriction, but again, without any legal prohibitions against copying, publishers would be incentivized to use at least some DRM-based restrictions. The pay off in protection would simply be too large, and business might well decide that customer unhappiness could be managed through various other mechanisms (like reduced prices or marketing), rather than &#8220;give in&#8221; to those who would copy without paying.</p> <p>Of course, in reality it is not necessarily a black vs. white kind of proposition. We do not need to elect <em>either</em> full copyright or <em>no</em> copyright. We could choose a more limited form of copyright than we have today.</p> <p>In truth, I believe limiting current copyright is the right approach to the situation. Unfortunately, it requires complex thinking and analysis, and all the factors are hard to quantify. (I suppose this is another example of why lawyers almost always say &#8220;it depends&#8221; when asked their opinion.)</p> <p>This kind of analysis also gives us &#8220;<a class="zem_slink" title="Fair use" rel="wikipedia" href="http://en.wikipedia.org/wiki/Fair_use">fair use</a>,&#8221; a doctrine <a href="https://inpropriapersona.com/2008/01/fair-use-of-copyrighted-material.html">sadly neglected</a> (in my opinion), and one that could use some more clarity and strength.</p> <p>But for now, just remember you need to consider all the ramifications if you rail against copyright, just as those who favor stronger copyright need to consider the negative impacts of that approach. Remember that a likely outcome of eliminating legal protections would be an increase in private enforcement alternatives like DRM, and pontificate accordingly.</p> <p>Related articles</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/thoughts-about-reforming-digital.html">Consumers and Copyright: Thoughts about reforming the Digital Millennium Copyright Act (DMCA)</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/electronic-texts-and-rent-seeking.html">Electronic texts and rent-seeking publishers</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/05/copyright-paradox-book-by-neil-netanel.html">Copyright&#8217;s Paradox: a book by Neil Netanel</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/01/fair-use-of-copyrighted-material.html">Fair use of copyrighted material benefits US economy: report</a> (inpropriapersona.com)</li> </ul> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.plagiarismtoday.com/2009/01/28/you-think-us-copyright-law-is-bad/">You Think U.S. Copyright Law is Bad?</a> (plagiarismtoday.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.crn.com/retail/216500680;jsessionid=1SVK4RM4MDL1WQSNDLPSKH0CJUNN2JVN">Returning Product To Amazon Could Brick Your Kindle</a> (crn.com)</li> <li class="zemanta-article-ul-li"><a href="http://torrentfreak.com/piracy-has-become-mainstream-studies-show-090313/">Piracy Has Become Mainstream, Studies Show</a> (torrentfreak.com)<a href="http://www.plagiarismtoday.com/2009/01/21/5-stupid-copyright-questions-that-arent/"></a></li> <li class="zemanta-article-ul-li"><a href="http://www.plagiarismtoday.com/2009/01/21/5-stupid-copyright-questions-that-arent/">5 Stupid Copyright Questions That Aren&#8217;t</a> (plagiarismtoday.com)<a href="http://www.violeta.si/2009/02/intellectual-property-one-of-key.html"></a></li> <li class="zemanta-article-ul-li"><a href="http://www.violeta.si/2009/02/intellectual-property-one-of-key.html">INTELLECTUAL PROPERTY, one of the key factors of sustainable growth in the modern world</a> (violeta.si)<a href="http://www.macworld.com/article/138732/2009/02/drmfreedvd.html?lsrc=rss_main"></a></li> <li class="zemanta-article-ul-li"><a href="http://www.macworld.com/article/138732/2009/02/drmfreedvd.html?lsrc=rss_main">DVDs and a DRM-free future</a> (macworld.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><a class="zemanta-pixie-a" title="Reblog this post [with Zemanta]" href="http://reblog.zemanta.com/zemified/1474aae8-8290-4f88-b82f-c0549d16eea1/"><img class="zemanta-pixie-img" style="border:medium none;float:right;" src="http://img.zemanta.com/reblog_c.png?x-id=1474aae8-8290-4f88-b82f-c0549d16eea1" alt="Reblog this post [with Zemanta]" /></a></div> "Challenging the Strong Presumption of Patent Validity" https://inpropriapersona.com/articles/challenging-the-strong-presumption-of-patent-validity/ Fri, 17 Apr 2009 08:54:00 +0000 3f6d9b1f3036a413db11a26d3323f358 <p><a href="http://www.patentlyo.com/patent/2009/04/challenging-the-strong-presumpition-of-patent-validity.html">Patent Law Blog (Patently-O): Challenging the Strong Presumption of Patent Validity</a></p> <blockquote><p>One of the next major legal challenges to patent rights will be against the strong <a class="zem_slink" title="Presumption" rel="wikipedia" href="http://en.wikipedia.org/wiki/Presumption">presumption</a> of validity associated with the patent grant. Section 282 of the patent act says only that a patent and its claims &#8220;shall be presumed valid.&#8221; Under longstanding doctrine, this presumption can only be overcome with <a class="zem_slink" title="Burden of proof" rel="wikipedia" href="http://en.wikipedia.org/wiki/Burden_of_proof">clear and convincing evidence</a> of invalidity. The challenge to this presumption is most likely on two fronts: (1) expanded post-grant review and (2) court challenges to the weight of the presumption.</p></blockquote> <p>An interesting description of what legal issue might be important in regards to patents. Worth reading.</p> <p><strong>Related articles by Zemanta<br /> </strong></p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.pbs.org/mediashift/2009/03/how-crowdsourcing-could-revolutionize-patent-busting076.html">How Crowdsourcing Could Revolutionize Patent-Busting</a> (pbs.org)</li> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090121/1956353483.shtml">US Patent Office Does Initial Rejection On All Claims For Patent On Creating Subdomains</a> (techdirt.com)</li> </ul> "Rosetta Stone Files for an IPO" https://inpropriapersona.com/news/2009/rosetta-stone-files-for-an-ipo/ Fri, 17 Apr 2009 01:59:00 +0000 31f89514ce1fcf595b9128d37ab69e5f <p class="zemanta-img" style="float:right;display:block;width:210px;margin:1em;"><a href="http://en.wikipedia.org/wiki/Image:Rosettastonev3.jpg"><img src="http://upload.wikimedia.org/wikipedia/en/thumb/a/ae/Rosettastonev3.jpg/200px-Rosettastonev3.jpg" alt="Rosetta Stone (software)" style="border:medium none;display:block;" width="200" height="160" /></a><span class="zemanta-img-attribution">Image via <a href="http://en.wikipedia.org/wiki/Image:Rosettastonev3.jpg">Wikipedia</a></span></p> <div> <p><a href="http://marketplace.publicradio.org/display/web/2009/04/16/ipo_market/">Marketplace on NPR: Will this IPO translate into turnaround?</a>:</p> <blockquote> <p><a class="zem_slink" href="http://www.rosettastone.com" title="Rosetta Stone (software)" rel="homepage">Rosetta Stone</a>, the language software maker, is one of the few companies to file an IPO this year. With a strong market debut, will other companies follow suit?</p> </blockquote> <p>This has to be the first IPO I&#8217;ve heard about in a very long time.</p> </div> <p> Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/money.cnn.com/2009/04/14/news/companies/copeland_rosetta.fortune/index.htm%3Fsection%3Dmoney_latest&amp;a=4304938&amp;rid=3b60aaec-18f8-8143-8376-b8c1df6978d0&amp;e=198f0f68fd3f1f914fba9f6b625850b0"> IPO watch </a> (money.cnn.com)</li> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-1023_3-10160893-93.html?part=rss&amp;subj=news">IPOs on deck, but not a tech company among them</a> (news.cnet.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/3b60aaec-18f8-8143-8376-b8c1df6978d0/" title="Reblog this post [with Zemanta]"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=3b60aaec-18f8-8143-8376-b8c1df6978d0" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related pretty-attribution"></span></div> "Social media for law students (and everyone else)" https://inpropriapersona.com/articles/social-media-for-law-students-and-everyone-else/ Wed, 15 Apr 2009 05:42:00 +0000 765a5f83bcb6f9f060dfca2aac171de0 <p class="zemanta-img" style="float:right;display:block;width:163px;margin:1em;"><a href="http://www.crunchbase.com/company/linkedin"><img src="http://www.crunchbase.com/assets/images/resized/0001/1055/11055v1-max-450x450.png" alt="Image representing LinkedIn as depicted in Cru..." style="border:medium none;display:block;" height="70" width="153" /></a><span class="zemanta-img-attribution">Image via <a href="http://www.crunchbase.com/">CrunchBase</a></span></p> <p><a class="zem_slink" href="http://en.wikipedia.org/wiki/Social_media" title="Social media" rel="wikipedia">Social media</a> tools allow everyone, not just <a class="zem_slink" href="http://en.wikipedia.org/wiki/Information_technology" title="Information technology" rel="wikipedia">information technology</a> aficionados, to create and maintain their online professional persona. They have become key tools as online research has become ubiquitous. Using Google to look up potential new hires is something that many in the tech industry have been doing for years (I&#8217;ve been examining potential new hires online for almost 10 years, as have many people in the IT world). Now that managers in all industries are doing this, applicants outside of IT need to manage their professional online image.</p> <p>Previously, online searches would turn up newsgroup postings, bulletin board commentary, personal Web sites, mailing list postings, and so on. As <a class="zem_slink" href="http://facebook.com/" title="Facebook" rel="homepage">Facebook</a> and newer forms of &#8220;social media&#8221; grew, the potential information grew both in scope (to include more personal information especially) as well as breadth (to include people who were not necessarily in the IT field). Clearly, exercising care in what personal and non-professional information one posts (drunken Facebook pictures are the canonical example) remains important, but effective job-seekers and networkers today should go farther and proactively take charge of their professional online life.</p> <p><a href="http://www.linkedin.com/">LinkedIn</a> is a prime service for creating, maintaining, and sharing professional information. It opens up your professional background to potential hiring managers, as well as clients and colleagues. It is key now that Googling applicants has become routine. Kevin O&#8217;Keefe of LexBlog echoes this sentiment in <a href="http://kevin.lexblog.com/2009/04/articles/social-networking-1/law-school-students-using-linkedin-its-a-no-brainer/">Law school students using LinkedIn : It&#8217;s a no brainer</a>:</p> <blockquote><p>As a hiring employer, I look at someone&#8217;s LinkedIn profile before anything else. I then run various Google searches to get a feel for a candidate&#8217;s background. Talking to other employers, I&#8217;m finding I&#8217;m pretty typical. So if you&#8217;re a law student without a complete and growing LinkedIn profile, you&#8217;re missing the boat.</p> </blockquote> <p>Google, obviously, will turn up more than LinkedIn profiles. But LinkedIn provides a very effective method of presenting your professional face to the world, and can help you present the information about yourself that you want to present, as you wish to present it. This can help you guard against mistaken identify problems (confusing you with someone with the same name who has not been careful on MySpace, for example), or even old information that really is about you, but that does not reflect your current professional persona.</p> <p>To make effective use of LinkedIn, Kevin O&#8217;Keefe <a href="http://kevin.lexblog.com/2009/04/articles/social-networking-1/law-school-students-using-linkedin-its-a-no-brainer/">suggests that you</a>:</p> <ul> <li>Make sure your profile is complete.</li> <p></p> <li>Connect with people you know.</li> <p></p> <li>Get recommendations.</li> <p></p> <li>Join appropriate groups.</li> <p> </ul> <p>He also suggests you do old-fashioned networking, with or without the help of <a href="http://www.linkedin.com/">LinkedIn</a>, and make use of other social media tools like <a href="http://www.twitter.com/">Twitter</a>. To this, <a href="https://inpropriapersona.com/2007/09/10-reasons-for-law-student-to-blog.html">I suggest that if you consider blogging</a>, too, as another method of displaying your analytic and writing talent.</p> <p>What was once the domain only of information technology professionals has opened up to everyone through easy-to-use social media tools like LinkedIn (or lesser-known services like <a href="http://www.plaxo.com/">Plaxo</a> and <a href="http://www.wink.com/">Wink</a>). Given their easy of use and effectiveness, all law students&mdash;and everyone else in the job market today&mdash;should take advantage of them.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://kylelacy.com/10-tips-to-maximize-plaxo/"> 7 Tips to Maximize Plaxo </a> (kylelacy.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20090314013340/http://www.briansolis.com:80/2009/03/humanizing-social-networks-revealing.html">Humanizing Social Networks: Revealing the People Powering Social Media</a> (briansolis.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20100107155151/http://myventurepad.com/MVP/55463"> Facts vs Fiction &#8211; Social Media Tools in B2B Selling </a> (myventurepad.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20150926055405/http://punetech.com/how-to-effectively-use-linkedin-for-professional-networking-30-do%e2%80%99s-and-don%e2%80%99ts/">How To Effectively Use Linkedin For Professional Networking: 30 DOs and DONTs</a> (punetech.com)</li> <li class="zemanta-article-ul-li"><a href="http://mashable.com/2009/03/20/linkedin-groups-marketing-features/">LinkedIn Groups Add Marketing Power</a> (mashable.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/a0d2280e-52a8-4a64-99fb-2b44dd17c465/" title="Reblog this post [with Zemanta]"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=a0d2280e-52a8-4a64-99fb-2b44dd17c465" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related pretty-attribution"></span></div> "Jobs for new lawyers are hard to come by" https://inpropriapersona.com/news/2009/jobs-for-new-lawyers-are-hard-to-come-by/ Sun, 12 Apr 2009 02:23:00 +0000 cb9c3c1da17d95398cc68acb73a2cda7 <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 210px;"><a href="http://en.wikipedia.org/wiki/Image:Downtowncentersf.jpg"><img style="border:medium none;display:block;" src="http://upload.wikimedia.org/wikipedia/en/thumb/9/99/Downtowncentersf.jpg/200px-Downtowncentersf.jpg" alt="Morrison &amp; Foerster headquarters (San Francisc..." width="200" height="207" /></a><span class="zemanta-img-attribution">Image via <a href="http://en.wikipedia.org/wiki/Image:Downtowncentersf.jpg">Wikipedia</a></span></p> <div> <p>It&#8217;s no secret that the job market is in shambles, and the legal job market is really no exception. It should come as no surprise that the market is <a href="http://web.archive.org/web/20090626061056/http://archives.chicagotribune.com:80/2009/mar/09/business/chi-biz-market-tough-law-school-graduates-march09">particularly tough for new graduates</a>, people who a year or two ago could often expect &#8211; or were led to expect &#8211; to earn over $100K at graduation. So what does this mean?</p> <p>At PrawfsBlawg, Nadine Farid <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/04/will-work-for-part-two.html">writes</a>:</p> <blockquote><p>So, what does this mean for recent law graduates and those who will soon join them? To state the obvious, they&#8217;re existing in/entering an uncertain world, one which might require them to consider, rather quickly, alternatives to planned career paths. More measured cost-cutting approaches by Biglaw and other employers could serve to aid the needs of those ventures in this economy while still bringing in (and perhaps more importantly, training) talented, eager associates and helping to avoid the glut that they would create in the market.</p></blockquote> <p>Part of the problem emerges, of course, from the debt associated with law school, which can easily exceed $50L-$100K for the three years required. While it&#8217;s hard to have sympathy for graduates not earning six figures, it can be especially difficult to switch careers or adjust to changing economic conditions with such a high level of debt.</p> <p>Some options might include debt forgiveness for public interest work, although work in the public interest, even with low salaries, can be tough to get at the best of times. Many lenders will grant deferments for lack of work or other hardships, but the interest will still accrue. Still, this may be a good option for some.</p> <p>The idea of using the time between graduation and a job to do volunteer, <a class="zem_slink" title="Pro bono publico" rel="wikipedia" href="http://en.wikipedia.org/wiki/Pro_bono_publico">pro bono</a> work might be another good option for many young lawyers. At the very least, pro bono work will keep one&#8217;s legal skills sharp while building the kind of network critical for future success.</p> <p>Some may even choose to go solo, but with loans harder to come by, that may be a difficult course to get started on without some beginning capital.</p> <p>Despite all of this, I think the law is still a good, practical career choice. Despite some attempts to <a href="http://www.law.com/jsp/article.jsp?id=1098907069708">offshore legal work</a>, the highly jurisdiction-specific nature of legal work (especially in the United States) will always make this a niche idea, I believe.</p> <p>Personally, I&#8217;m taking another track: I&#8217;m going to grad school after I finish law school in June.</p></div> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://refinanced.blogspot.com/2009/03/why-do-pro-bono-lawyers-work-for-free.html">Why Do Pro Bono Lawyers Work For Free?</a> (refinanced.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="http://lawfirmpracticegroup.blogspot.com/2009/01/view-from-3l.html">The View From 3L</a> (lawfirmpracticegroup.blogspot.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/04/who-could-be-hired-today.html"> Who Could Be Hired Today? </a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20091221214527/http://abovethelaw.com:80/2009/02/simpson_thacher_sabbatical_program.php">Dealing With the Downturn: Simpson Thacher&#8217;s Public Service Program</a> (abovethelaw.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202429842204&amp;rss=newswire">Five Sobering Future Trends Could Impact Younger Lawyers</a></li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=7a34a12a-7081-40d1-97ff-53294da30011" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "10 Reasons for a Law Student to Blog" https://inpropriapersona.com/articles/10-reasons-for-a-law-student-to-blog/ Sat, 11 Apr 2009 20:03:00 +0000 e5ff49557e2e32c17b220598dad363fa <p class="zemanta-img zemanta-action-dragged" style="float:right;display:block;width:250px;margin:1em;"><a href="http://www.flickr.com/photos/79434558@N00/751221191"><img src="http://farm2.static.flickr.com/1203/751221191_fdb8eae75c_m.jpg" alt="Money" style="border:medium none;display:block;" height="240" width="240" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/79434558@N00/751221191">TW Collins</a> via Flickr</span></p> <p><span style="font-weight:bold;">10. Make money fast!</span></p> <p><a href="http://www.copyblogger.com/no-money-blogging/">Hardly</a>. Blogging may pay the bills for some, but law blogging is hardly going to pay for the coffee you need to get through the semester, much less your books. So stick to free tools like <a href="http://www.blogger.com/">Blogger.com</a> and <a href="http://www.wordpress.com/">WordPress.com</a> so you at least don&#8217;t <span style="font-style:italic;">lose</span> money. Still, if you want to make a go of bringing in some income, sites like <a href="http://www.problogger.net/">ProBlogger.net</a> can help.</p> <p><span style="font-weight:bold;">9. A chance to express your opinion on what you think is important</span></p> <p>It can be demoralizing to be one amongst 90+ students in a lecture hall. Your voice is only heard when your prof takes the Socratic method to heart and spends 20 minutes grilling you on the finer points of the <a href="http://en.wikipedia.org/wiki/Rule_against_perpetuities">Rule Against Perpetuities</a>. At least blogging lets you finally get your two cents out there. Submitting to social media like <a href="http://www.digg.com/">Digg</a>, <a href="http://www.stumbleupon.com/">StumbleUpon</a>, and sharing via <a href="http://www.twitter.com/">Twitter</a> and <a href="http://www.facebook.com/">Facebook</a> can help get your voice heard.</p> <p><span style="font-weight:bold;">8. Future employers <a href="http://advice.cio.com/meridith_levinson/job_seekers_to_employers_stop_snooping">will research you</a> on Google</span></p> <p>Better insightful Web commentary than drunken MySpace pictures, no? (You <i>are</i> writing insightful commentary, aren&#8217;t you?) If you&#8217;re not comfortable with this, don&#8217;t blog. You can try to hide behind the anonymity of the Internet, but it can be difficult, and defeats some of the main point of blogging. Regardless, be sure you are fine with what you write because your online words <a href="http://www.archive.org/">tend to stay around</a> longer than you would think.</p> <p><span style="font-weight:bold;">7. You can participate in scholarly discourse</span></p> <p>Why wait to publish a note or an article in a law review? On the Web, you are your own editor. Use that power wisely (see #8) and you may reap the rewards. The back-and-forth of the Web can be a wonderful thing, if you choose to participate directly. But even indirect participation far from the &#8220;center&#8221; of the discourse can be fruitful and rewarding, and the skills you develop will serve you well later (see #6).</p> <p class="zemanta-img zemanta-action-dragged" style="float:left;display:block;width:250px;margin:1em;"><a href="http://www.flickr.com/photos/58803355@N00/203901861"><img src="http://farm1.static.flickr.com/73/203901861_68470d3a19_m.jpg" alt="journals (1, 10-40)" style="border:medium none;display:block;" height="180" width="240" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/58803355@N00/203901861">paperbackwriter</a> via Flickr</span></p> <p><span style="font-weight:bold;">6. The more you write, the better you&#8217;ll get</span></p> <p>Practice makes perfect and all that. Just remember that people may actually read what you&#8217;re writing, if not now, then perhaps just before your key interview. So even though it&#8217;s easy to dash off something without thinking, try to keep your grammar decent and your points on track. But there&#8217;s a reason why so many professional writers force themselves to do it every day: it&#8217;s <a href="http://www.copyblogger.com/become-a-better-writer/">one of the best ways to get better</a>.</p> <p><span style="font-weight:bold;">5. Legal scholarship is moving online</span></p> <p>Law reviews and legal publishing are slow, ponderous efforts. Blogging is quick (in both a good and bad sense). Response and back-and-forth is easy and public. Margaret Schilt writes in &#8220;<a href="http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1188464547361">Is the Future of Legal Scholarship in the Blogosphere?</a>&#8220;:</p> <blockquote> <p>If you are looking for the future of legal scholarship, chances are that you may find it not in a treatise or the traditional law review but in a different form, profoundly influenced by the blogosphere.</p> </blockquote> <p><span style="font-weight:bold;">4. You can get immediate feedback</span></p> <p>Via comment systems and reactions from other bloggers, you have the potential to gain quick and useful feedback on flaws in your analysis or on points to pursue further. Without blogging, you&#8217;re limited to the views of those you approach and talk with. Blogging opens your work and your ideas up to the world.</p> <p><span style="font-weight:bold;">3. It can do wonders for your reputation and your personal brand</span></p> <p class="zemanta-img zemanta-action-dragged" style="float:right;display:block;width:210px;margin:1em;"><a href="http://en.wikipedia.org/wiki/Image:BusinessCardAttorney1895.jpg"><img src="http://upload.wikimedia.org/wikipedia/en/thumb/2/29/BusinessCardAttorney1895.jpg/200px-BusinessCardAttorney1895.jpg" alt="Attorney business card 1895" style="border:medium none;display:block;" height="122" width="200" /></a><span class="zemanta-img-attribution">Image via <a href="http://en.wikipedia.org/wiki/Image:BusinessCardAttorney1895.jpg">Wikipedia</a></span></p> <p> (See also #8, above.) If you write well, employers, colleagues and clients can all see that demonstrated for themselves. A well-written blog can really build your reputation and your <a href="http://www.fastcompany.com/magazine/10/brandyou.html">personal brand</a>. It is an effective supplement to your old-school resume and business cards. (At the same time, a poorly-written blog can kill your reputation.)</p> </p> <p class="zemanta-img zemanta-action-dragged" style="float:left;display:block;margin:1em;"><a href="http://www.flickr.com/photos/61787893@N00/163867387"><img src="http://farm1.static.flickr.com/65/163867387_c6e01a413c_m.jpg" alt="My Moleskine journal" style="border:medium none;display:block;" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/61787893@N00/163867387">Earl &#8211; What I Saw 2.0</a> via Flickr</span></p> <p><span style="font-weight:bold;">2. You can capture your own ideas for future use</span></p> <p>Need a paper topic? Look back over your blog. Like a searchable journal, a blog gives you an archive to mine for future research, and may well come with the bonus of commentary and critique by others.</p> <p><span style="font-weight:bold;">1. Lawyers write</span></p> <p>Being a lawyer is, at least in part, <a href="http://www.delawareemploymentlawblog.com/2009/01/the_top_30_blogs_on_writing.html">about writing well</a>. Blogging is a natural extension of this. If you&#8217;re a law student, you need to &#8220;think like a lawyer.&#8221; Blogging can help. (See #6.)</p> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/9a47c031-af9f-469d-9628-91199e9628d1/" title="Reblog this post [with Zemanta]"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=9a47c031-af9f-469d-9628-91199e9628d1" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related pretty-attribution"></span></div> "Review of Early Spring: An Ecologist and Her Children Wake to a Warming World" https://inpropriapersona.com/articles/review-of-early-spring-an-ecologist-and-her-children-wake-to-a-warming-world/ Sat, 11 Apr 2009 17:34:00 +0000 b7cb5b58a0bbf4ab2b0f1a1df0e2558c <p><a href="http://ecx.images-amazon.com/images/I/51umbvXi8HL._SL160_.jpg"><img style="margin: 0pt 0pt 10px 10px; float: right; cursor: pointer; width: 104px; height: 160px;" src="http://ecx.images-amazon.com/images/I/51umbvXi8HL._SL160_.jpg" border="0" alt="" /></a></p> <p><a href="http://www.realclimate.org/index.php/archives/2009/04/breaking-the-silence-about-spring/">Breaking the silence about Spring &#8211; RealClimate</a>:</p> <blockquote><p>Did you know that in 1965 the U.S. Department of Agriculture planted a particular variety of lilac in more than seventy locations around the U.S. Northeast, to detect the onset of spring &#8211; in turn to be used to determine the appropriate timing of corn planting and the like? The records the USDA have kept show that those same lilacs are blooming as much as two weeks earlier than they did in 1965. April has, in a very real sense, become May. This is one of the interesting facts that you&#8217;ll read about in Amy Seidl&#8217;s book, <span style="font-style:italic;">Early Spring</span>, a hot-off-the-press essay about the impacts of climate change on the world immediately around us &#8211; the forest, the birds, the butterflies in our backyards.</p></blockquote> <p>An <a href="http://www.realclimate.org/index.php/archives/2009/04/breaking-the-silence-about-spring/">well-written review</a> of an intriguing book that takes seriously the changes to the climate visible to all of us, and not just the observations or theories of the scientific community: &#8220;listen to the farmers and gardeners, and the observations of regular people: they are meaningful.&#8221;</p> <p>The book is <a href="http://www.amazon.com/gp/product/0807085847?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0807085847">Early Spring: An Ecologist and Her Children Wake to a Warming World</a><img style="border:medium none!important;display:none;margin:0!important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0807085847" border="0" alt="" width="1" height="1" />, by Amy Seidl.</p> "Information as Property from the Scholarly Kitchen" https://inpropriapersona.com/articles/information-as-property-from-the-scholarly-kitchen/ Sat, 11 Apr 2009 13:15:00 +0000 caf446c23b48926393dc420a4b818691 <p><a href="http://www.amazon.com/Public-Domain-Enclosing-Commons-Mind/dp/0300158343%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0300158343"><img class="alignright" title="The Public Domain: Enclosing the Commons of the Mind" src="http://ecx.images-amazon.com/images/I/412ushopGuL._SL160_.jpg" alt="" width="103" height="160" /></a>I found this interesting discussion of <a class="zem_slink" title="Intellectual property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Intellectual_property">IP</a> today:</p> <blockquote class="zemanta-reblog-quote"><p>Information, however, has properties that make it sufficiently different from physical objects to question whether the <a class="zem_slink" title="Property" rel="wikipedia" href="http://en.wikipedia.org/wiki/Property">property</a> model is a good metaphor for information. Unlike natural resources, information is <strong>non-depletable</strong>. Overuse of information does not lead to its scarcity, nor does it attenuate its value; in fact, it does just the opposite. Secondly, it is <strong>non-rival</strong>, meaning that my reading an article does not deprive you of reading the same article. Lastly, it is <strong>difficult to exclude</strong> individuals from gaining access to information. Information, especially in its digital form, is porous and moves very easily between people. <a href="http://scholarlykitchen.sspnet.org/2009/03/02/framing-the-open-access-debate/">This is why I find the Open Access metaphor so problematic</a>.<span class="attribution zemanta-reblog-cite" style="text-align: right; display: block; width: 100%; padding: 1em 0;">Philip Davis at <a href="http://scholarlykitchen.sspnet.org/2009/04/09/information-as-property/">The Scholarly Kitchen</a></span></p></blockquote> <p>The entire article, which also reviews a book by <a class="zem_slink" title="James Boyle (academic)" rel="wikipedia" href="http://en.wikipedia.org/wiki/James_Boyle_%28academic%29">James Boyle</a> called <a class="zem_slink" title="The Public Domain: Enclosing the Commons of the Mind" rel="amazon" href="http://www.amazon.com/Public-Domain-Enclosing-Commons-Mind/dp/0300137400%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0300137400">The Public Domain: Enclosing the Commons of the Mind</a>, is worth a read.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://blog.makezine.com/archive/2008/12/the_public_domain_enclosing_the_com.html?CMP=OTC-0D6B48984890">The Public Domain: Enclosing the Commons of the Mind</a> (makezine.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/03/02/james-boyle-lectures.html">James Boyle lectures on the public domain, London, Mar 10</a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="http://blog.twidox.com/?p=832">UK Events: Jamie Boyle speaking on the Public Domain</a> (twidox.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><a class="zemanta-pixie-a" title="Reblog this post [with Zemanta]" href="http://reblog.zemanta.com/zemified/5b996f80-7460-4770-9e06-618bc686213f/"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/reblog_c.png?x-id=5b996f80-7460-4770-9e06-618bc686213f" alt="Reblog this post [with Zemanta]" /></a></div> "Law, War, and the History of Time" https://inpropriapersona.com/articles/law-war-and-the-history-of-time/ Fri, 10 Apr 2009 23:03:00 +0000 4f3637811f1828acab9f8dc7cdb88b63 <p class="zemanta-img zemanta-action-dragged" style="float:right;display:block;width:250px;margin:1em;"><a href="http://www.flickr.com/photos/10325651@N00/198459808"><img src="http://farm1.static.flickr.com/73/198459808_32623d7536_m.jpg" alt="Your Conduct in Combat Under the Law of War" style="border:medium none;display:block;" width="240" height="180" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/10325651@N00/198459808">AlaskanLibrarian</a> via Flickr</span></p> <p><a href="http://balkin.blogspot.com/2009/04/now-on-ssrn-law-war-and-history-of-time.html">Law, War, and the History of Time &#8211; Balkinization</a>:</p> <blockquote> <p>I&#8217;ve posted a new paper on SSRN on a theme I&#8217;ve blogged about here and here: Law, War, and the History of Time. While I wrote this paper in the interest of making sense out of the 20th century history of law and war, I think it helps with an early 21st century problem: the very concept of &#8220;wartime,&#8221; with the implicit ideas that wars are bounded in time, and that there is something outside of &#8220;wartime&#8221; that is supposed to be normality, simply no longer fits.</p> </blockquote> <p>An interesting piece looking at law and history in a different way. Worth a read, I think.</p> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/de7dedae-24ff-40a2-b3e7-b0b05898e8f2/" title="Reblog this post [with Zemanta]"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=de7dedae-24ff-40a2-b3e7-b0b05898e8f2" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related pretty-attribution"></span></div> "Who Are The Stevens Six?" https://inpropriapersona.com/news/2009/who-are-the-stevens-six/ Fri, 10 Apr 2009 00:53:00 +0000 b11504de3f472a109897120b00c72dc9 <p class="zemanta-img" style="float:right;display:block;width:210px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:Ted_Stevens.jpg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/2/2b/Ted_Stevens.jpg/200px-Ted_Stevens.jpg" alt="{{w|Ted Stevens}}, United States Senator. Offi..." style="border:none;display:block;" width="200" height="253" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:Ted_Stevens.jpg">Wikipedia</a></span></p> <p><a href="http://tpmmuckraker.talkingpointsmemo.com/2009/04/who_are_the_stevens_six.php">Who Are The Stevens Six? | TPMMuckraker</a>:</p> <blockquote> <p>[T]hese [six <a class="zem_slink" href="http://en.wikipedia.org/wiki/United_States_Department_of_Justice" title="United States Department of Justice" rel="wikipedia">Justice Department</a> prosecutors who worked on the <a class="zem_slink" href="http://en.wikipedia.org/wiki/Ted_Stevens" title="Ted Stevens" rel="wikipedia">Ted Stevens</a> case] are by and large career prosecutors, none of whom have obvious records of political activism on either side. These were serious missteps by veterans who should have known better—and an independent prosecutor will determine whether they were deliberate enough to qualify as contempt. But by all appearances, they were the product of incompetence, poor oversight, turf wars, and an overzealous approach to the job, which led them to run roughshod over established legal procedure—rather than of the overt politicization we saw, for instance, in the <a class="zem_slink" href="http://en.wikipedia.org/wiki/United_States_Attorney" title="United States Attorney" rel="wikipedia">US Attorney</a> firings scandal.</p> </blockquote> <div> </div> <div> <p>An interesting, if brief, look at the six prosecutors involved in the case. I was wondering who these people were and what their background was. Perhaps unfortunately, it did not turn out to be easy to neatly categorize them as poor prosecutors based on their history, etc. So what did go wrong?</p> </div> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.americablog.com/2009/04/lest-we-forget-it-was-george-bushs.html"> Lest we forget, it was George Bush&#8217;s Justice Dept. that botched the Stevens prosecution </a> (americablog.com)</li> <li class="zemanta-article-ul-li"><a href="http://news.bbc.co.uk/2/hi/americas/7988402.stm"> Judge throws out Stevens&#8217; conviction </a> (news.bbc.co.uk)</li> <li class="zemanta-article-ul-li"><a href="http://andrewsullivan.theatlantic.com/the_daily_dish/2009/04/integrity-returns.html">Integrity Returns?</a> (andrewsullivan.theatlantic.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.cnn.com/2009/POLITICS/04/07/ted.stevens/index.html%3Feref%3Drss_mostpopular&amp;a=4219556&amp;rid=38dab546-6c2b-46dc-affb-1d0ec38ce087&amp;e=fddad0a7763d1f59d60573325fc89e39"> Ted Stevens&#8217; conviction set aside </a> (cnn.com)</li> </ul> <div class="zemanta-pixie" style="margin-top:10px;height:15px;"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/38dab546-6c2b-46dc-affb-1d0ec38ce087/" title="Reblog this post [with Zemanta]"><img class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=38dab546-6c2b-46dc-affb-1d0ec38ce087" alt="Reblog this post [with Zemanta]" style="border:none;float:right;" /></a><span class="zem-script more-related"></span></div> "A Misguided Philosophy of Science" https://inpropriapersona.com/articles/a-misguided-philosophy-of-science/ Thu, 09 Apr 2009 22:31:00 +0000 d17d3cc2803d85220c176910a5d7db21 <p><a href="http://www.flickr.com/photos/lselibrary/4072388266/"><img class="alignright" title="Karl Popper, c1990" src="http://farm4.static.flickr.com/3487/4072388266_2f6b71cb2b_m-1.png" alt="Karl Popper, c1990" width="240" height="237" /></a> <a href="http://prawfsblawg.blogs.com/prawfsblawg/2009/04/a-misguided-philosophy-of-science.html">PrawfsBlawg: A Misguided Philosophy of Science</a>:</p> <blockquote><p>During my first year as a economics graduate student, I spent at most two minutes thinking about the philosophy behind empirical work. On the first day of my year-long econometrics sequence, our professor quickly reminded us that hypotheses cannot be proven, only disproven. That was it. I don&#8217;t even think <a class="zem_slink" title="Karl Popper" rel="wikipedia" href="http://en.wikipedia.org/wiki/Karl_Popper">Karl Popper</a>&#8216;s name came up. This is simply not an issue that social scientists wrestle with. Which is a problem, since what we do is not what we think we do.</p> <p>We think we are engaged in Popperian refutation. Popper&#8217;s theory is relatively simple to explain: Induction and confirmation are impossible, and all we can do is refute hypotheses. In other words, it is impossible to prove that all swans are white, no matter how many white swans I see. In <a class="zem_slink" title="Science" rel="wikipedia" href="http://en.wikipedia.org/wiki/Science">fact</a>, to Popper, each additional white swan provides <span style="font-style: italic;">no</span> additional confirmation of that <a class="zem_slink" title="Hypothesis" rel="wikipedia" href="http://en.wikipedia.org/wiki/Hypothesis">hypothesis</a>. But all it takes is one black swan to refute the hypothesis.</p> <p>The appeal of Popper&#8217;s apporach is that it avoids the <a class="zem_slink" title="Problem of induction" rel="wikipedia" href="http://en.wikipedia.org/wiki/Problem_of_induction">problems of induction</a>, known to us since the time of <a class="zem_slink" title="David Hume" rel="wikipedia" href="http://en.wikipedia.org/wiki/David_Hume">David Hume</a>. Popper&#8217;s is a purely <a class="zem_slink" title="Deductive reasoning" rel="wikipedia" href="http://en.wikipedia.org/wiki/Deductive_reasoning">deductive logic</a>. Our theory makes prediction X, we see that X is not so, so our theory is &#8212; and logically must be &#8212; wrong.</p> <p>But the real problem for me is that the <a class="zem_slink" title="Social sciences" rel="wikipedia" href="http://en.wikipedia.org/wiki/Social_sciences">social sciences</a> are not engaged in the Popperian endeavor. If nothing else, our theoretical models are incompatible with it. Compare criminology to physics. In criminology, we may be able to make a guess about the direction of the effect, but that is all: &#8220;more people in prison will lead to less crime&#8221; is the best we can do.</p> <p>Physics produces genuinely testable predictions. The social sciences do not.</p></blockquote> <p>There is much more detail and exploration in the original post about the importance that bringing more <a class="zem_slink" title="Meta-analysis" rel="wikipedia" href="http://en.wikipedia.org/wiki/Meta-analysis">meta-analysis</a> or &#8220;evidence based&#8221; practices to the social sciences. His conclusion that more rigorous review is needed in the social sciences:</p> <blockquote><p>[O]ur failure to produce them is a fundamental <a class="zem_slink" title="Epistemology" rel="wikipedia" href="http://en.wikipedia.org/wiki/Epistemology">epistemological</a> failure. A single study can refute, but only an overview can confirm. And confirmation is what we do. The explosion in empirical work makes such overviews all the more important, since the larger the literature the harder it is to see the big picture, especially with an ever-growing pool of poorly-designed studies muddying the waters. Review essays are the very heart of empirical knowledge, and they should be treated as such.</p></blockquote> <p>An interesting and important beginning to looking into some of the more hidden recesses of the social sciences, which have always struck me as &#8220;trying too hard&#8221; to justify themselves as &#8220;real science,&#8221; and thus (at times, not always) tending to avoid self-reflection or analysis. I look forward to reading more on this topic.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><a class="zemanta-pixie-a" title="Reblog this post [with Zemanta]" href="http://reblog.zemanta.com/zemified/06ba7a03-49d7-4951-9931-34a7d0359223/"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/reblog_c.png?x-id=06ba7a03-49d7-4951-9931-34a7d0359223" alt="Reblog this post [with Zemanta]" /></a></div> "Microsoft Gets Slammed in Yet Another Patent Suit" https://inpropriapersona.com/articles/microsoft-gets-slammed-in-yet-another-patent-suit/ Thu, 09 Apr 2009 19:38:00 +0000 a1d257f0b067aa5f41953d47dfa8fad1 <p class="zemanta-img" style="float:right;display:block;width:210px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:Software_patents2.JPG"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/5/57/Software_patents2.JPG/200px-Software_patents2.JPG" alt="author: Mark Nowotarski ==Notes== The 1998 :en..." style="border:none;display:block;" width="200" height="159" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:Software_patents2.JPG">Wikipedia</a></span></p> <p><a href="http://blogs.wsj.com/law/2009/04/09/microsoft-gets-slammed-in-yet-another-patent-suit/">Microsoft Gets Slammed in Yet Another Patent Suit &#8211; Law Blog &#8211; WSJ</a>:</p> <blockquote> <p>In what&#8217;s being billed as the fifth-largest patent award in history—and the second largest this year—a federal jury in Rhode Island on Wednesday ordered Microsoft to pay $388 million to Uniloc USA Inc. and Uniloc Singapore Private Ltd. for infringing a software patent.</p> </blockquote> <p>The software patent deals with unique licensing and registration of software, such as Microsoft&#8217;s product activation codes (the large string of digits you enter to register your software). The <a href="http://patft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&amp;Sect2=HITOFF&amp;d=PALL&amp;p=1&amp;u=/netahtml/PTO/srchnum.htm&amp;r=1&amp;f=G&amp;l=50&amp;s1=5,490,216.PN.&amp;OS=PN/5,490,216&amp;RS=PN/5,490,216">patent itself</a> says:</p> <blockquote> <p>In broad terms, the system according to the invention is designed and adapted to allow digital data or software to run in a use mode on a platform if and only if an appropriate licensing procedure has been followed. In particular forms, the system includes means for detecting when parts of the platform on which the digital data has been loaded has changed in part or in entirety as compared with the platform parameters when the software or digital data to be protected was for example last booted or run or validly registered. </p> </blockquote> <p>According to <a href="http://www.patenthawk.com/blog/2008/08/summary_misjudgment.html">The Patent Prospector</a>, the case had gone up to an appeals court earlier, after an earlier trial judge granted summary judgment against Uniloc:</p> <blockquote> <p>Uniloc sued Microsoft for infringing <a href="http://patft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&amp;Sect2=HITOFF&amp;d=PALL&amp;p=1&amp;u=/netahtml/PTO/srchnum.htm&amp;r=1&amp;f=G&amp;l=50&amp;s1=5,490,216.PN.&amp;OS=PN/5,490,216&amp;RS=PN/5,490,216">5,490,216</a>, claiming an anti-piracy software registration system. Microsoft&#8217;s product activation system was accused. The district court judge granted summary judgment of non-infringement despite concession by Microsoft.</p> </blockquote> <p>The appeals court sent it back down to the district court after the appeals court wrote,</p> <blockquote> <p>Microsoft presented &#8220;several alternative grounds for affirming the summary judgment beyond those which were reached by the district court. We have considered these arguments and conclude they are without merit.&#8221;<br />&#8211; <i>Uniloc USA, Inc. v. Microsoft Corp.</i>, C.A. No. 03-440 S, slip op. at 24 (D.R.I. Oct. 19, 2007)</p> </blockquote> <p>Back at trial in the district court, the jury (not the judge, as some news stories said) found infringement by Microsoft and awarded large damages to Uniloc.</p> <p>I am generally doubtful of <a href="http://www.bitlaw.com/software-patent/history.html">software patents</a> as a whole, but I don&#8217;t know enough about the field of product activation to judge the novelty, etc. of this patent, nor do I know anything about Microsoft&#8217;s potential infringement. My gut feeling after reading through the patent (and having registered software as a user at least), though, is that it is, at the very least, overbroad in its claims.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/money.cnn.com/2009/04/08/technology/microsoft_patent_lawsuit.reut/index.htm%3Fsection%3Dmoney_latest&amp;a=4238911&amp;rid=81768475-7c69-48a7-b371-331e4f370cce&amp;e=65c1c2eca9c5f1c72f1ad5bf234eef3c"> $388M verdict against Microsoft </a> (money.cnn.com)</li> <li class="zemanta-article-ul-li"><a href="http://blog.startupprofessionals.com/2009/03/software-patents-valuable-but-flawed.html">Software Patents: Valuable but Flawed</a> (startupprofessionals.com)</li> </ul> <div class="zemanta-pixie" style="margin-top:10px;height:15px;"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/81768475-7c69-48a7-b371-331e4f370cce/" title="Reblog this post [with Zemanta]"><img class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=81768475-7c69-48a7-b371-331e4f370cce" alt="Reblog this post [with Zemanta]" style="border:none;float:right;" /></a><span class="zem-script more-related"></span></div> "Consumers and Copyright: Thoughts about reforming the Digital Millennium Copyright Act (DMCA)" https://inpropriapersona.com/articles/consumers-and-copyright-thoughts-about-reforming-the-digital-millennium-copyright-act-dmca/ Thu, 09 Apr 2009 10:10:00 +0000 6d486784bc5098a88b95f10a82967125 <div>The <a href='http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act'>Digital Millennium Copyright Act</a> (DMCA) is much maligned, but, I think, not fully understood by very many people. Today, a visitor to our Software Law class from Microsoft presented a very good explanation of the 1998 law. He explained some aspects that are not spoken about too much in the general tech community, like the ISP &#8220;<a href='http://www.chillingeffects.org/dmca512/'>Safe Harbor</a>&#8221; provision—which actually applies quite a bit beyond the traditional ISP and could easily include YouTube or even <a href='http://www.blogherald.com/2008/07/28/dmca-safe-harbor-part-one/'>your average blogger</a>. In many respects, the DMCA is quite generous, requiring limited policing of content, provided one is handling 3rd-party uploads, for example.</p> <p>We finished with a discussion about what changes to the DMCA might be beneficial. One point he made was that ISPs (remember, this includes YouTube, for example) should be required to take more active &#8220;filtering&#8221; or policing roles, instead of forcing content-owners to do the work of identifying infringing content.</p> <p>To me, this approach reflected a content-owner perspective on the law, and attempting to balance that somewhat with the needs of corporate ISPs (including the likes of Google). The ideas he had are arguably good changes to close perceived &#8220;loopholes&#8221; in the DMCA and to better reflect the original Congressional intent behind the DMCA.</p> <p>However, the end result appeared to me very corporate focused. It attempts to re-balance the needs of these two interest groups while ignoring what our professor termed the &#8220;third pillar&#8221; of copyright and content: the consumer. Thus, I asked, what exactly do I get out of restricting use of copyrighted content? More content? More stable companies? Perhaps.</p> <p>But the &#8220;black-or-white&#8221; alternative of <a href='https://inpropriapersona.com/2009/03/against-intellectual-monopoly.html'>eliminating intellectual property rights</a> rubs me the wrong way, too. Are we not all content producers these days? While I often appreciate finding my content re-purposed, I prefer that I still, at the very least, receive credit for my work. I think an author/creator (but not necessarily an IP &#8220;owner&#8221;) deserves recompense during a reasonable (i.e., not the current length of time) for use that generates revenue. In other words, if you want to sell my work, I should get a slice of what you receive for that. But if you truly give it away, credit is all I ask. (For this site, I actually use the <a href='http://creativecommons.org/licenses/by-nc/3.0/us/'>Creative Commons Attribution-Noncommercial 3.0 United States License</a>.)</p> <p>The <a href='http://www.law.cornell.edu/constitution/constitution.overview.html'>U.S. Constitution</a> does not require IP protection as we have it now. Its focus is on <a href='http://www.law.cornell.edu/constitution/constitution.articlei.html#section8'>promoting &#8220;progress&#8221;</a> (whatever that means, of course) in science and the arts (through <i>limited</i> monopolies). The goal is to benefit society, at least in the longer term, not to enrich property owners. So, I ask, do current IP protections truly promote progress? I don&#8217;t think they do so at all effectively.</p> <p>Perhaps we should be pulling more from the French tradition of &#8220;<a href='http://cyber.law.harvard.edu/property/library/moralprimer.html'>moral rights</a>&#8221; of authors to find our way out of this quandary. Other than companies and their vested interests, most of the objections I hear from people is the idea that creators are exploited by &#8220;pirated&#8221; works (but aren&#8217;t musical labels in the exploitation business, too?). So why not protect against this by, for example, <i>requiring</i> attribution and revenue-sharing?</p> <p>This does not address the issue of control, though, another feature of French-style &#8220;moral rights.&#8221; Should a creator be able to refuse a particular use of his or her work? I think there is a good argument for allowing this in at least some situations. In fact, perhaps this kind of right should last longer than other copyright protections or the right to revenue.</p> <p>This applies to the creator or creators. But should those rights be transferable? I have no real problem with the revenue-generation portion being transferable (with, perhaps, some reservations to avoid exploitation original authors, and with a more limited duration), but I do not think other &#8220;moral rights&#8221; should be transferable. (Of course, much creation is collaborative, so one would need to deal with the lack of single authorship too.)</p> <p>There is much to think about still, but I think the take-away lesson for me is that too often IP law focuses on the large players (and especially on content owners) and ignores the people involved&#8211;and especially ignores consumers (perhaps we assume the market will take care of that side&#8230; which is another additional discussion&#8230;) All in all, a good class and a good presentation about the topic.</p> <p>For more on consumers and copyright, see, for example:</p> <ul> <li><a href="http://web.archive.org/web/20111017065125/http://librarycopyright.net/wordpress/?p=325">A Response to &#8220;A Reader&#8217;s Guide to Copyright&#8221;</a> at the <a href='http://librarycopyright.net'>Copyright Advisory Network</a></li> <li><a href='http://www.techdirt.com/articles/20090405/1557354391.shtml'>Copyright Doesn&#8217;t Just Grant the Content Creator Rights</a> at <a href='http://www.techdirt.com'>techdirt</a></li> <li><a href='http://www.kevindonovan.org/creativeconsumercopyrightact'>Creative Consumer Copyright Act</a> by Kevin Donovan</li> <li><a href='http://ssrn.com/abstract=466420'>Copyright Law&#8217;s Theory of the Consumer</a> by Joseph Liu (on SSRN)</li> </ul> </div> "Open-access policy flourishes at NIH" https://inpropriapersona.com/articles/open-access-policy-flourishes-at-nih/ Wed, 08 Apr 2009 03:41:00 +0000 6a99f04c17298cb6ad08e89523511464 <p class="zemanta-img" style="float:right;display:block;width:212px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:NIH_Clinical_Center_south_entrance.jpg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/b/b9/NIH_Clinical_Center_south_entrance.jpg/202px-NIH_Clinical_Center_south_entrance.jpg" alt="National Institutes of Health - Clinical Cente..." style="border:medium none;display:block;" height="152" width="202" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:NIH_Clinical_Center_south_entrance.jpg">Wikipedia</a></span></p> <div> <p><a href="http://www.nature.com/news/2009/090407/full/458690a.html?s=news_rss">Open-access policy flourishes at NIH : Nature News</a>:</p> <blockquote> <p>One year on, advocates of free public access to scientific literature are calling a law that requires researchers at the US <a rel="wikipedia" title="National Institutes of Health" href="http://en.wikipedia.org/wiki/National_Institutes_of_Health" class="zem_slink">National Institutes of Health</a> (NIH) to make their manuscripts publicly available at the <a rel="wikipedia" title="PubMed Central" href="http://en.wikipedia.org/wiki/PubMed_Central" class="zem_slink">PubMed Central</a> repository a success. At the same time, the measure continues to be challenged by a senior congressman and some publishers.</p> </blockquote> <p>I always like to keep tabs on the <a rel="wikipedia" title="Open access publishing" href="http://en.wikipedia.org/wiki/Open_access_publishing" class="zem_slink">open-access publishing</a> world. Predictably, some publishers are complaining that this model undermines their (quite lucrative, it seems from many analyses) profit model, but the downturn in the economy makes it difficult to attribute journal cancellations to the NIH open-access mandate. Nevertheless, it seems that subscriptions are down across all disciplines, not just medicine, supporting the idea that open access via the NIH is not causing additional problems for publishers.</p> <blockquote> <p>But Martin Frank, executive director of the American Physiological Society in Bethesda, says that &#8220;in an environment where access is readily available whether after 12 months or 6 months or immediately, the subscription model starts wobbling&#8221;. Frank predicts that, as subscription revenues tank, publishers will be forced to levy stiff fees on authors for publishing.</p> </blockquote> </div> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.chemspider.com/blog/a-bill-against-the-nih-open-access-policy-is-back-in-house.html">A Bill Against the NIH Open-Access Policy is Back in House</a> (chemspider.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.downes.ca/cgi-bin/page.cgi?post=47545">Economic Implications of Alternative Scholarly Publication Models</a> (downes.ca)</li> <li class="zemanta-article-ul-li"><a href="http://scholarlykitchen.sspnet.org/2009/01/28/subscription-publishers-lead-oa/">Subscription Publishers Lead with Open Access</a> (scholarlykitchen.sspnet.org)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/11/long-road-to-open-access.html">The Long Road to Open Access</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://scienceblogs.com/clock/2009/03/the_nih_public_access_policy_i.php">The NIH Public Access Policy is now permanent</a> (scienceblogs.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/28239fb0-ac91-4df5-944f-b428d6a3c613/" title="Zemified by Zemanta"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=28239fb0-ac91-4df5-944f-b428d6a3c613" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related"></span></div> "Electronic texts and rent-seeking publishers" https://inpropriapersona.com/articles/electronic-texts-and-rent-seeking-publishers/ Tue, 07 Apr 2009 08:54:00 +0000 e34794ca95c9dd4da1efade720bbc010 <div> <p><a href="http://www.flickr.com/photos/pruet/4210756788/"><img class="alignright" title="&quot;prs300-5&quot; by Flickr user pruet, used under a Creative Commons Attribution-Noncommercial 2.0 license" src="http://farm3.static.flickr.com/2754/4210756788_c58b88a6d8_m.jpg" alt="prs300-5" width="240" height="180" /></a> <a href="http://www.talkingpointsmemo.com/archives/2009/03/until_quite_recently_id_seen.php">Frightful Kindle | TPM</a>:</p> <blockquote><p>Finally, only a few months ago, I purged a decent chunk of my collection. And most are now in storage. But in our living room we have two big inset shelves where I keep all the books I feel like I need or want ready at hand. And last night, sitting in front of them, I had this dark epiphany. How much longer are these things going to be around? Not my books, though maybe them too. But just books. Physical, paper books. The few hundred or so I was looking at suddenly seemed like they were taking up an awful lot of space, like the whole business could dealt with a lot more cleanly and efficiently, if at some moral loss.</p></blockquote> <p>In response Dave Hoffman writes at <a href="http://www.concurringopinions.com/archives/2009/04/rentseeking_in_1.html">Concuring Opinions</a>,</p> <blockquote><p>It&#8217;s certainly true that there&#8217;s something reassuring about having lots of books in a room, but I suspect Josh is right that their day is ending. And this is probably for the best. My books weigh me down: they make me less flexible about traveling, they take up space in the house, they are hugely expensive, and they are inefficient.</p></blockquote> <p>After noting some of the &#8220;rent-seeking&#8221; behavior of traditional publishers who justify, on the basis of problems binding large books, splitting up said books into additional volumes (and end up selling more to a captive audience), he writes, &#8220;Bring on the revolution.&#8221;</p> <p>Much as I too appreciate the physicality of paper, I am quite fond of my (inherited, old) e-reader from Sony. I find myself wishing that textbook publishers would move to the format. Granted, some textbooks just work better in paper format, but after spending $140 on a single law book last quarter (cost justified, at least in part, by it&#8217;s huge size), I couldn&#8217;t help but wonder if an electronic version wouldn&#8217;t have worked much, much better.</p> <p>How much of the cost goes into binding such a volume? Certainly there are editing costs, plus author payments (not huge, I&#8217;m sure), but beyond that, shouldn&#8217;t such a book in electronic form be a more reasonable $20 &#8211; $40, perhaps? I suppose publishers are scared of students simply sharing the text with other students, but honestly, set at the right price, it would be easier to buy it than share it, I suspect.</p> <p>I wonder how long it will be before law books reach e-readers? Longer than it should is the only prediction I feel comfortable making.</p> </div> "Indian Biogenerics on an Upswing" https://inpropriapersona.com/articles/indian-biogenerics-on-an-upswing/ Tue, 07 Apr 2009 03:57:00 +0000 9937527871e403a5ba7efb6aa476d133 <p>&#8216;</p> <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 212px;"><a href="http://commons.wikipedia.org/wiki/Image:Ritalin-SR-20mg-1000x1000.jpg"><img style="border:medium none;display:block;" src="http://upload.wikimedia.org/wikipedia/commons/thumb/a/a9/Ritalin-SR-20mg-1000x1000.jpg/202px-Ritalin-SR-20mg-1000x1000.jpg" alt="Resized image of Ritalin-SR-20mg-full.png; squ..." width="202" height="202" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:Ritalin-SR-20mg-1000x1000.jpg">Wikipedia</a></span></p> <p><a href="http://www.patentbaristas.com/archives/2009/04/06/indian-biogenerics-on-an-upswing/">Patent Baristas » Indian Biogenerics on an Upswing</a>:</p> <blockquote><p>Indias pharmaceutical industry caters to about 30% of the world&#8217;s generic requirements. Despite its tremendous volume, it has been facing difficult times recently, with the WHO stance on counterfeit drugs, as well as seizure of Indian generic shipments in the EU.</p> <p>There is some good news now on the turf with the introduction of Bipartisan Biogenerics Consensus Bill: Promoting Innovation and Access to Life-Saving Medicine Act in US which shall open up the US markets to biogenerics. It is proposed by Rep. Henry A. Waxman who is also credited with an existing legislation on pharma generics to his name. (Hatch-Waxman Act) The Bill intends to authorize FDA to approve generic biotech drugs and provide a regulatory set up for the same. This would help Indian companies to launch their biological generics in US by 2010.</p> <p>The patent protection for blockbuster first-generation biotherapeutics developed in the West has begun to expire, throwing them open for generic exploitation. While continued high demand, high prices, and applicability in previously untreatable conditions are behind the success of branded biologics, the absence of generic competition has meant that the growth has gone unchallenged.</p></blockquote> <p>A quite interesting explanation of the potential changes in store for the &#8220;generic&#8221; pharmaceutical industry, and the importance of generic drug manufacturing to India (which is a leader in this area, partly do to patent laws that have favored generic drug manufacturers).</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.drug-injury.com/druginjurycom/2009/04/marcia-angells-list-of-seven-things-that-should-be-done-by-the-new-fda-leadership.html"> Marcia Angell&#8217;s List Of Seven Things That Should Be Done By The New FDA Leadership </a> (drug-injury.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20090404183106/http://www.medicalnewstoday.com:80/articles/144734.php"> House Panel Hears Testimony On Bill Banning Patent Settlement Payments To Delay Generic Drug Competition </a> (medicalnewstoday.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.ctv.ca/servlet/ArticleNews/story/CTVNews/20090227/generics_090227/20090227%3Fhub%3DHealth&amp;a=3442703&amp;rid=3717a2c5-aee3-4a03-990f-11192e890d97&amp;e=09a7cb0c64d1a0d65b15ff79c8b72cb2">Obama calls for generic biotech drugs</a> (ctv.ca)</li> <li class="zemanta-article-ul-li"><a href="http://blogs.wsj.com/health/2009/03/11/waxman-charts-a-pathway-for-generic-biotech-drugs/">Waxman Charts a Pathway for Generic Biotech Drugs</a> (blogs.wsj.com)</li> <li class="zemanta-article-ul-li"><a href="http://ducknetweb.blogspot.com/2009/03/generic-biotech-drugs-discussed-in.html">Generic biotech drugs discussed in Congress &#8211; Bio Similars</a> (ducknetweb.blogspot.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=d4fc9fdc-6b02-408d-ae3a-dd45ebd82249" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Bad Results for Google in Recent 2nd Circuit Ruling Over Keywords" https://inpropriapersona.com/articles/bad-results-for-google-in-recent-2nd-circuit-ruling-over-keywords/ Mon, 06 Apr 2009 21:33:00 +0000 6b3bfdada4344ae4fb009d2c66f656cb <div> <p><a href="http://blogs.wsj.com/law/2009/04/06/bad-results-for-google-in-recent-2nd-circuit-ruling-over-keywords/">Bad Results for Google in Recent 2nd Circuit Ruling Over Keywords &#8211; Law Blog &#8211; WSJ</a>:</p> <blockquote><p>In an <a href="http://www.ca2.uscourts.gov/decisions/isysquery/ab9ba532-8f80-4202-a724-c3e8615a8dca/3/doc/06-4881-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ab9ba532-8f80-4202-a724-c3e8615a8dca/3/hilite/" target="_blank">opinion penned by Judge Pierre Leval</a>, a three-judge panel ruled that Google must face a trademark infringement lawsuit for selling keywords that trigger ads. Click <a href="http://www.law.com/jsp/article.jsp?id=1202429676298" target="_blank">here</a> for the Recorder story.</p></blockquote> <p>An interesting development. Basically, Google was selling the names of companies to competitor companies as keywords for advertising. The 2nd Circuit did not necessarily say that was not acceptable, just that it did not fall into the &#8220;internal use&#8221; exemption for infringement and sending it back to the district court for further proceedings based on that.</p> </div> "Will the Internet Replace Universities?" https://inpropriapersona.com/articles/will-the-internet-replace-universities/ Mon, 06 Apr 2009 09:03:00 +0000 c534141c01c3efe61ef0960c6d07bd82 <p class="zemanta-img" style="float: right; display: block; width: 250px; margin: 1em;"><a href="http://www.flickr.com/photos/71401718@N00/3308971616"><img style="border: medium none; display: block;" src="http://farm4.static.flickr.com/3372/3308971616_6ff2d8b2b3_m.jpg" alt="Suzzallo Library, one of the great libraries o..." width="240" height="160" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/71401718@N00/3308971616">Wonderlane</a> via Flickr</span></p> <p><a href="http://blogs.discovermagazine.com/cosmicvariance/2009/04/03/will-the-internet-replace-universities/">Will the Internet Replace Universities? | Cosmic Variance | Discover Magazine</a>:</p> <blockquote><p>Via Brad DeLong, an article by Kevin Carey in the Chronicle of Higher Education starts with the obvious &#8212; the Internet is killing newspapers as we knew them &#8212; and asks whether the same will happen to universities.</p></blockquote> <p>Kevin Carey, in the original article cited above, writes:</p> <blockquote><p>Newspapers are dying. Are universities next? The parallels between them are closer than they appear. Both industries are in the business of creating and communicating information. Paradoxically, both are threatened by the way technology has made that easier than ever before.</p></blockquote> <p>Cosmic Variance points out the variety of functions available through more traditional university environments, from belonging to a community, to participating in extracurricular activities and becoming independent. He suggests strongly that it would be &#8220;too bad&#8221; if current instruction were to be replaced by an online model, much as the Internet has supplanted print newspapers.</p> <p>Reader comments have interesting perspectives on the matter, too. Personally, I am inclined to agree that an online, Web-based education would have provided perhaps twenty percent of what I learned during my undergraduate education, and perhaps fifty percent or more of my law school education. Law school has simple been so much more fact-specific and detailed in its teaching in a way that my undergraduate learning was not. On the other hand, nothing could replace my judicial externship experience or certain interactions with some faculty in law school. But this in-person, experiential aspect was far more critical for me as an undergraduate, where learning facts was far less important than learning to think critical, engage with the world on my own, and seek out my own path distinct from what I thought I should be doing with my life. All achievable independent of a physical university, I would think, but perhaps more difficult and less likely to occur as effectively.</p> <p>Regardless, I do not think the physical university is going anywhere, but I do think online options are, will be, and ought to be critical supplements, particularly in certain areas of learning.</p> "Who Could Be Hired Today?" https://inpropriapersona.com/news/2009/who-could-be-hired-today/ Sat, 04 Apr 2009 17:38:00 +0000 ada2042396d754785744b9995821d39b <p><a href="http://www.flickr.com/photos/lselibrary/4166786326/"><img class="alignright" title="Edward Jenks, c1930 from the LSE" src="http://farm3.static.flickr.com/2709/4166786326_aaa9d31550_m.jpg" alt="Edward Jenks, c1930" width="173" height="240" /></a> <a href="http://www.concurringopinions.com/archives/2009/04/who_could_be_hi.html">Who Could Be Hired Today? (Concurring Opinions)</a>:</p> <blockquote><p>The trend in hiring law professors with graduate training in other disciplines as well as law degrees is not new; it&#8217;s been underway at least since I was a student (1988-1991). Some of the best classes I took were with individuals who had such backgrounds. But the emphasis has become even more intense in recent years. It is no longer considered obligatory to put in a few years doing actual legal work, before signing up for the AALS faculty recruitment conference.</p></blockquote> <p>An interesting discussion of the shift in law school hiring away from those with just law degrees towards those trained in other disciplines as well. As a soon-to-be-graduating law student about to go into a PhD program with a possible future goal in academia, this is of interest to me. I intend to get legal experience as well, but likely not the law firm path of many current law school professors. It will be interesting to see how things develop over the next few years.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><a class="zemanta-pixie-a" title="Zemified by Zemanta" href="http://reblog.zemanta.com/zemified/920631ba-bb5a-467a-ba52-ab7c8cad05eb/"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/reblog_c.png?x-id=920631ba-bb5a-467a-ba52-ab7c8cad05eb" alt="Reblog this post [with Zemanta]" /></a></div> "Computer Programming and the Law: A New Research Agenda" https://inpropriapersona.com/articles/computer-programming-and-the-law-a-new-research-agenda/ Fri, 03 Apr 2009 01:30:00 +0000 812c2e104b1667789096a89e3fad2192 <p class="zemanta-img" style="float:right;display:block;width:250px;margin:1em;"><a href="http://www.flickr.com/photos/9479603@N02/3311745151"><img src="http://farm4.static.flickr.com/3592/3311745151_830512a003_m.jpg" alt="Unix Creators at DEC PDP11" style="border:medium none;display:block;" height="192" width="240" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.flickr.com/photos/9479603@N02/3311745151">PanelSwitchman</a> via Flickr</span></p> <p><a href="http://www.freedom-to-tinker.com/blog/paul/computer-programming-and-law-new-research-agenda">Computer Programming and the Law: A New Research Agenda | Freedom to Tinker</a>: </p> <blockquote> <p>By my best estimate, at least twenty different law professors on the tenure track at American law schools once held a job as a professional computer programmer. I am proud to say that two of us work at my law school.</p> <p>Most of these hyphenate lawprof-coders rarely write any code today, and this is a shame. There are many good reasons why the world would be a better place if we began to integrate computer programming into legal scholarship (and more generally, into law and policy).</p> </blockquote> <p>As a former professional computer programmer too, this interests me. Paul Ohm&#8217;s <a href="http://ssrn.com/abstract=1370411">essay on SSRN</a> goes into more detail:</p> <blockquote> <p>This essay proposes a new interdisciplinary research agenda called Computer Programming and the Law. By harnessing the power of computer programming, legal scholars can develop better tools, data, and insights for advancing their research interests. This essay presents the case for this new research agenda, highlights some examples of those who have begun to blaze the trail, and includes code samples to demonstrate the power and potential of developing software for legal scholarship. The code samples in this essay can be run like a piece of software-thanks to a technique known as literate programming-making this the world&#8217;s first law review article that is also a working computer program.</p> </blockquote> <p>I look forward to having a chance to read it.</p> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/8b711be7-093f-4cf3-95bb-02832b303341/" title="Zemified by Zemanta"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=8b711be7-093f-4cf3-95bb-02832b303341" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related"></span></div> "Major extension of Boumediene" https://inpropriapersona.com/news/2009/major-extension-of-boumediene/ Thu, 02 Apr 2009 23:41:00 +0000 1ca134da8cff2e9b653f50b943624c58 <p class="zemanta-img" style="margin: 1em; float: right; display: block; width: 212px;"><a href="http://commons.wikipedia.org/wiki/Image:Bagram_Aircraft_Petting_Zoo_early_2002.jpg"><img style="border:medium none;display:block;" src="http://upload.wikimedia.org/wikipedia/commons/thumb/9/98/Bagram_Aircraft_Petting_Zoo_early_2002.jpg/202px-Bagram_Aircraft_Petting_Zoo_early_2002.jpg" alt="Bagram" width="202" height="62" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:Bagram_Aircraft_Petting_Zoo_early_2002.jpg">Wikipedia</a></span></p> <p><a href="http://www.scotusblog.com/wp/major-extension-of-boumediene/">Major extension of Boumediene | SCOTUSblog</a>:</p> <blockquote><p>Judge Bates&#8217; decision ultimately rests on the same constitutional basis as the Supreme Court&#8217;s <em>Boumediene</em> decision: Congress&#8217; nullification of the habeas rights of detainees was invalid under the Suspension Clause, which severely limits the situations in which habeas rights can be taken away. Just as the <em>Boumediene </em>decision cleared the way for more than 200 Guantanamo detainees to challenge their confinement in federal courts, the Bates decision in <em>Al Maqaleh</em> does the same for the three Bagram prisoners. Neither ruling, as issued, settled the final outcome of any of those cases; outcomes must await sometimes lengthy proceedings in District Courts.</p></blockquote> <p>Interesting. This is truly a significant extension to<span style="font-style:italic;"> </span><a title="Boumediene v. Bush" href="http://en.wikipedia.org/wiki/Boumediene_v._Bush">Boumediene</a>. Earlier law (from post-WWII Germany, from a case known as <em><a title="Johnson v. Eisentrager" href="http://en.wikipedia.org/wiki/Johnson_v._Eisentrager">Eisentrager</a></em>) had suggested that no detainee outside the U.S. itself would be covered. But habeus is such a key right (strongly and explicitly protected in the <a class="zem_slink" title="United States Constitution" rel="wikipedia" href="http://en.wikipedia.org/wiki/United_States_Constitution">Constitution</a> itself) that this seems correct to me.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www10.nytimes.com/2009/04/03/washington/03bagram.html%3F_r%3D5%26partner%3Drss%26amp%3Bemc%3Drss&amp;a=4146543&amp;rid=f742eba7-6402-432b-b3a0-a258398090c7&amp;e=bf8ac3cf35decec5f1ed5ce5a3728e0e"> Detention at Afghan Base Is Subject to U.S. Courts </a> (nytimes.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=579b98ff-a848-4cff-988e-aceade96b68c" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "DOJ moves to set aside verdict against ex-senator Ted Stevens" https://inpropriapersona.com/news/2009/doj-moves-to-set-aside-verdict-against-ex-senator-ted-stevens/ Thu, 02 Apr 2009 03:19:00 +0000 a9aa267d5fc2413a0dc641ce4ec95651 <p><a href="http://www.flickr.com/photos/pmeimon/3755359047/"><img class="alignright" title="&quot;Department of Justice Building&quot; by Flickr user hyperion327, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 license" src="http://farm4.static.flickr.com/3458/3755359047_d47375fa21_m.jpg" alt="" width="240" height="160" /></a><a href="http://web.archive.org/web/20110311124118/http://jurist.law.pitt.edu/paperchase/2009/04/doj-moves-to-set-aside-verdict-against.php">JURIST &#8211; Paper Chase: DOJ moves to set aside verdict against ex-senator Ted Stevens</a>:</p> <blockquote><p>The US <a href="http://www.usdoj.gov/" target="_blank">Department of Justice</a> (DOJ) filed a <a href="http://media.washingtonpost.com/wp-srv/politics/documents/Stevens_040109.pdf" target="_blank">motion</a> in federal court Wednesday seeking to set aside the verdict and dismiss the indictment on corruption charges against <a href="http://bioguide.congress.gov/scripts/biodisplay.pl?index=s000888" target="_blank">former senator Ted Stevens</a> (R-AK).</p></blockquote> <p>Absolutely appalling. Is this what happens when you hire based on politics? Is this the equivalent of management at <a class="zem_slink" title="Federal Emergency Management Agency" rel="wikipedia" href="http://en.wikipedia.org/wiki/Federal_Emergency_Management_Agency">FEMA</a> during <a class="zem_slink" title="Hurricane Katrina" rel="wikipedia" href="http://en.wikipedia.org/wiki/Hurricane_Katrina">Katrina</a>? Lawyers may be the butt of many jokes, but most/all the attorneys I know attempt to uphold high standards of ethics. It&#8217;s certainly what we&#8217;re taught throughout law school. This kind of behavior—no joke—gives criminal law and the entire criminal justice system a bad reputation that is bad for everyone.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.hubdub.com/m37493/Will_former_US_Sen_Ted_Stevens_get_his_corruption_conviction_reversed?utm_campaign=rss&amp;utm_source=rss&amp;utm_medium=rss">Will former U.S. Sen. Ted Stevens get his corruption conviction reversed?</a> (hubdub.com)</li> <li class="zemanta-article-ul-li"><a href="http://lezgetreal.com/?p=7487">Holder orders charges dropped against Ted Stevens</a> (lezgetreal.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www10.nytimes.com/2009/04/02/us/politics/02stevens.html%3F_r%3D5%26partner%3Drss%26amp%3Bemc%3Drss&amp;a=4128441&amp;rid=bfb015c8-c62d-4e9e-b1ee-fff905f3e0b8&amp;e=2a2d22e6fe15bcd01ffeab0f38904960">U.S. to Drop Case Against Ex-Senator From Alaska</a> (nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www10.nytimes.com/aponline/2009/04/01/washington/AP-Stevens-Justice.html%3F_r%3D5%26partner%3Drss%26amp%3Bemc%3Drss&amp;a=4120735&amp;rid=bfb015c8-c62d-4e9e-b1ee-fff905f3e0b8&amp;e=58b597fbb60e6e54dedcc3a7828694cf">U.S. Plans to Drop Case Against Former Senator From Alaska</a> (nytimes.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.takepart.com/blog/2009/04/01/ted-stevens-charges-dropped-by-doj/">Ted Stevens&#8217; Charges Dropped by DOJ</a> (takepart.com)</li> <li class="zemanta-article-ul-li"><a href="http://news.bbc.co.uk/2/hi/americas/7977960.stm">Stevens conviction to be reversed</a> (news.bbc.co.uk)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><a class="zemanta-pixie-a" title="Zemified by Zemanta" href="http://reblog.zemanta.com/zemified/bfb015c8-c62d-4e9e-b1ee-fff905f3e0b8/"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/reblog_c.png?x-id=bfb015c8-c62d-4e9e-b1ee-fff905f3e0b8" alt="Reblog this post [with Zemanta]" /></a></div> "SSRN Papers Dealing with IP, Development and Innovation" https://inpropriapersona.com/articles/ssrn-papers-dealing-with-ip-development-and-innovation/ Mon, 23 Mar 2009 04:52:00 +0000 554cf41520fbf2b749b60ff3bad80f51 <p class="zemanta-img" style="float:right;display:block;width:212px;margin:1em;"><a href="http://en.wikipedia.org/wiki/Image:Supreme_Court_History-antitrust.jpg"><img src="http://upload.wikimedia.org/wikipedia/en/thumb/5/55/Supreme_Court_History-antitrust.jpg/202px-Supreme_Court_History-antitrust.jpg" alt="Comic of trust barons" style="border:none;display:block;" width="202" height="144" /></a><span class="zemanta-img-attribution">Image via <a href="http://en.wikipedia.org/wiki/Image:Supreme_Court_History-antitrust.jpg">Wikipedia</a></span></p> <dl> <dt><a href="http://ssrn.com/abstract=1314374">The Patent Lottery: Exploiting Behavioral Economics for the Common Good</a> by Dennis Crouch</dt> <dd> <blockquote> <p>Lotteries are immensely popular. Players are willing to give the organizer a large monetary cut of every ticket purchase in return for a chance at a jackpot. In some ways, our current patent system operates as a lottery as well. Most patents are relatively worthless, while a few are highly valuable. Reaching the major payout of a highly valuable patent takes perseverance in the face of tremendous uncertainty. Like lottery players, small entrepreneurial companies and individuals have shows signs of bounded rationality. In particular, what I call the patent lottery effect is associated with the phenomena of potential innovators overweighting the size of a potential payout on innovation while neglecting to fully consider the actual probability of obtaining that payout. The potential bounded rationality of actors in the patent system challenges our traditional notions of the patent incentive. </p> <p>In many settings, bounded rationality problems are patched-up with education and paternalism such as in the form of consumer protection. In this article, I take a different approach and instead explore ways that the overconfidence of innovators may alter our choice of innovation policy levers in ways that increase innovation but decrease the monopoly cost of patents.</p> </blockquote> </dd> <dt><a href="http://ssrn.com/abstract=1103143">Do Patents Perform Like Property?</a> by Michael Muerer and James Bessen</dt> <dd> <blockquote> <p>Do patents provide critical incentives to encourage investment in innovation? Or, instead, do patents impose legal risks and burdens on innovators that discourage innovation, as some critics now claim? This paper reviews empirical economic evidence on how well patents perform as a property system.</p> </blockquote> </dd> <dt><a href="http://ssrn.com/abstract=965083">The Property Rights Movement&#8217;s Embrace of Intellectual Property: True Love or Doomed Relationship?</a> by Peter Menell</dt> <dd> <blockquote> <p>The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement&#8217;s campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard Epstein&#8217;s embrace of intellectual property rights is likely to produce a durable marriage of traditional property rights theory and intellectual property protection or merely represents a fling that will not withstand divisive relational pressures. It shows that philosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.</p> </blockquote> </dd> <dt><a href="http://ssrn.com/abstract=980045">A New Balance between IP and Antitrust</a> by Mark Lemley</dt> <dd> <blockquote> <p>In this article, I introduce the interaction between intellectual property (IP) and antitrust law. I describe the ways in which these two important areas of government regulation are and are not in tension, and discuss the history of the relationship between these laws. I argue that IP and antitrust have cycled between over- and under-protection, and that we are currently (and mistakenly) conditioned to think of private property and private ordering as efficient in and of themselves, rather than as efficient only in the context of robust market competition. Further, I argue that antitrust can serve the goals of innovation and dynamic efficiency directly in circumstances in which competition, not monopoly, serves as a spur to innovation. The goal of the IP and antitrust laws should be to seek a robust balance between competition and monopoly in the service of dynamic efficiency. When IP laws are strong, antitrust laws should also be strong, and vice versa.</p> </blockquote> </dd> </dl> <div class="zemanta-pixie" style="margin-top:10px;height:15px;"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/a43028f5-fb6f-4f26-9764-661d903325c3/" title="Zemified by Zemanta"><img class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=a43028f5-fb6f-4f26-9764-661d903325c3" alt="Reblog this post [with Zemanta]" style="border:none;float:right;" /></a><span class="zem-script more-related"></span></div> "Got an Hour? Create a Server in the Cloud" https://inpropriapersona.com/articles/got-an-hour-create-a-server-in-the-cloud/ Mon, 23 Mar 2009 01:51:00 +0000 8dd74a56ad3c3c9a6d8b9f4556610ecf <p class="zemanta-img" style="float:right;display:block;width:212px;margin:1em;"><a href="http://en.wikipedia.org/wiki/Image:Dave_Winer.jpg"><img src="http://upload.wikimedia.org/wikipedia/en/thumb/5/51/Dave_Winer.jpg/202px-Dave_Winer.jpg" alt="Dave Winer" style="border:medium none;display:block;" height="250" width="202" /></a><span class="zemanta-img-attribution">Image via <a href="http://en.wikipedia.org/wiki/Image:Dave_Winer.jpg">Wikipedia</a></span></p> <p>From the &#8220;keeping up with technology&#8221; department comes this: <a href="http://www.readwriteweb.com/archives/got_an_hour_create_a_server_in_the_cloud.php">Got an Hour? Create a Server in the Cloud &#8211; ReadWriteWeb</a>:</p> <blockquote><p>Dave Winer yesterday announced EC2 for Poets, a step-by-step guide to help you create a server on Amazon&#8217;s EC2. His how-to is so easy to understand that we had our own server up and running within the hour. Sure, it may not seem like much that this fairly uninteresting page is sitting out there somewhere, but for this writer, it was an amazing coup.</p></blockquote> <p>Dave Winer wrote<a href="http://howto.opml.org/dave/ec2/"> the guide</a>, whose working title was &#8220;<a href="http://howto.opml.org/dave/ec2/">EC2 for Poets</a>&#8220;:</p> <blockquote> <p>The goal is to make cloud computing less mysterious by helping people through the process of setting up a server on Amazon EC2. The title derives from a class that was offered at the University of Wisconsin, when I was a grad student there, called Computer Science for Poets.</p> <p>I loved the idea then, and still do. Engineers sometimes mystify what they do, as a form of job security. I prefer to make light of it, so more people will be tempted to give it a try. It was easy for me, why shouldn&#8217;t it be easy for everyone? :-)</p> </blockquote> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.techmeme.com/090312/p30">Amazon tweaks EC2 pricing; Takes next step in its enterprise evolution (Larry Dignan/Between the Lines)</a> (techmeme.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.xconomy.com/seattle/2008/12/04/public-data-sets-go-on-amazons-cloud/">Public Data Goes on Amazon&#8217;s Cloud</a> (xconomy.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.theregister.co.uk/2009/03/20/amazon_on_ec2_disaster_recovery/">Amazon cloud offers protection from falling meteors</a> (theregister.co.uk)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/dd0885bc-0046-42af-b2f5-3d1c2c32bc54/" title="Zemified by Zemanta"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=dd0885bc-0046-42af-b2f5-3d1c2c32bc54" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related"></span></div> "Strict International Patent Laws Hurt Developing Countries" https://inpropriapersona.com/articles/strict-international-patent-laws-hurt-developing-countries/ Sun, 22 Mar 2009 22:36:00 +0000 c077fd011e34688b09b80cf7d9f3fc9c <p><a href="http://yaleglobal.yale.edu/display.article?id=562">Strict International Patent Laws Hurt Developing Countries</a>, an article in YaleGlobal from 2002 by Amy Kapczynski:</p> <blockquote><p>In 1998, 39 pharmaceutical companies filed a lawsuit against South Africa. They hoped to stop the government from producing the generic drugs that would have made treatment affordable for the country&#8217;s AIDS victims. A public outcry ensued, and critics accused pharmaceutical companies of valuing profit over human life. Although these same companies were eventually pressured into dropping the lawsuit, the conflict illustrates a problem inherent in recent free trade agreements – inflexible patent regulations can prevent developing countries from obtaining or producing affordable versions of the medicine they need.</p> <p>Understanding the lawsuit requires a bit of background. Patents are temporary monopolies granted by governments. They give the inventor a right to exclude everyone else from producing, selling, or distributing a product in that country. Monopolies are generally viewed as a bad thing, because they create what economists call &#8220;deadweight losses.&#8221; So why are governments granting them? The theory is that the higher prices that patents allow companies to charge provide incentives to develop and commercialize new products. The dirty secret about patents, as a law school professor of mine once put it, is that no one knows how strong patents have to be to serve this purpose. For example, are twenty years of patent protection necessary to provide sufficient incentives for research? Or is ten years sufficient? Under international rules, patents must now be granted for a minimum of twenty years &#8211; although until recently, patents were often much shorter, even in the U.S.</p> <p>Here is another dirty secret: Patents cannot generate innovation where there is no market.</p> <p>Faced with a potential public health crisis [during the anthrax crisis], Congress recognized what many other countries have been arguing all along: that patents are not &#8220;rights&#8221; but rather privileges &#8211; and that they do not come before the rights to health and life.</p></blockquote> <p>How might this kind of logic apply to patents (or other forms of IP) outside of the medical context? And what would be a rationale approach to resolving it?</p> "Do Patents Stimulate R&D Investment and Promote Growth?" https://inpropriapersona.com/articles/do-patents-stimulate-rd-investment-and-promote-growth/ Sun, 22 Mar 2009 21:26:00 +0000 8090e5217542055057ff8a9c64a20f5a <div style="float:right;"><a href="http://www.amazon.com/gp/product/069113491X?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=069113491X"><img border="0" src="http://web.archive.org/web/20160113141835/http://www.researchoninnovation.org/dopatentswork/cover.jpg" width="148"></a><img src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=069113491X" width="1" height="1" border="0" alt="" style="border:none!important;margin:0!important;" /></div> <p><a href="http://www.patentlyo.com/patent/2008/03/do-patents-stim.html">Patent Law Blog (Patently-O): Do Patents Stimulate R&amp;D Investment and Promote Growth?</a>:</p> <blockquote><p>As background material, this post reviews the sizable body of empirical research analyzing the impact of patents on R&amp;D investment and economic growth. Three future posts will present new empirical research featured in our book Patent Failure. The theme across all four posts is that patents often fail to perform effectively as property rights. [DDC: To work well as property, the right should be predictably valid; have discernible boundaries; and not have an overly fragmented ownership scheme.]</p> <p>Economists cherish property rights that provide strong incentives for investment and trade, and that thereby contribute to economic growth. Potentially, patent rights could accomplish these three goals, and surely they sometimes do. Apparently though, it is hard to set up and maintain a patent system that works as property.</p> <p>The rise of new market economies and strengthening of property rights around the globe in the last two decades provides economists with &#8216;natural experiments&#8217; that help us evaluate whether and how much property rights contribute to investment and growth. The empirical results are impressive. Countries that expanded the role of markets and strengthened property rights have prospered from these choices. Economic historians find the same results hold going back to the Industrial Revolution.</p> </blockquote> <p>Another look at my current interest: is IP (as currently constituted) really beneficial across developed and developing countries?</p> <p>For more on this particular book and argument, see:</p> <ul> <li>The <a href="http://web.archive.org/web/20160113001027/http://www.researchoninnovation.org/dopatentswork/">book&#8217;s site</a></li> <li><a href="http://www.researchoninnovation.org/">Research on Innovation</a> working papers</li> </ul> <div> </div> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://clubtroppo.com.au/2009/03/22/intellectual-property-and-the-flexibility-of-property-rights-100-bleg/">Intellectual property and the flexibility of property rights: $100 bleg</a> (clubtroppo.com.au)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/news.ars/post/20090123-transfer-agreements-not-patents-holding-up-bio-research.html">Transfer agreements, not patents, holding up bio research</a> (arstechnica.com)</li> </ul> <div class="zemanta-pixie" style="margin-top:10px;height:15px;"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/948e0572-94b9-45c3-a217-3f1eb18547e3/" title="Zemified by Zemanta"><img class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=948e0572-94b9-45c3-a217-3f1eb18547e3" alt="Reblog this post [with Zemanta]" style="border:none;float:right;" /></a><span class="zem-script more-related"></span></div> "Against Intellectual Monopoly" https://inpropriapersona.com/articles/against-intellectual-monopoly/ Sat, 21 Mar 2009 00:35:00 +0000 d171f3bfdbb4e9bb8872f358be0434db <div style="float:right;"><a href="http://www.amazon.com/gp/product/0521879280?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0521879280"><img border="0" src="http://assets.cambridge.org/97805218/79286/cover/9780521879286.jpg" /></a><img src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0521879280" width="1" height="1" border="0" alt="" style="border:none!important;margin:0!important;" /> </div> <p><a href="http://www.dklevine.com/general/intellectual/againstfinal.htm">Against Intellectual Monopoly</a>, a book by by Michele Boldrin and David K. Levine, two economists who have <a href="https://inpropriapersona.com/2009/03/economists-abolish-copyright-patents-to.html">proposed abolishing copyrights and patents</a>:</p> <blockquote><p>It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity and liberty.</p></blockquote> <p>This book seems to come at the issue from a libertarian perspective, which I sometimes have problems with (mostly due to a tendency of some libertarians to 1. act selfishly and without a consideration of other people and 2. want to de-regulate economic behavior while re-regulating social behavior, something that appears inherently contradictory). </p> <p>Nonetheless, the idea of getting rid of IP (in its current form, anyway) is one worth exploring, at least as a kind of &#8220;what if?&#8221; experiment that can help us understand the pros and cons of various approaches to IP protection and its impact on economics, development, etc.</p> <p>The authors contribute to a <a href="http://www.againstmonopoly.org/">blog</a> as well. A sample post from a different contributor:</p> <blockquote><p>There are some decent arguments out there that argue in favor of a state, welfare rights, war, democracy, drug laws, and so on. They are all flawed, since libertarianism is right, but there are coherent, honest arguments that we libertarians have to grapple with.</p></blockquote> <blockquote><p>But it is striking that there are no decent arguments for IP&#8211;as Manuel Lora remarked to me, &#8220;You know, I haven&#8217;t seen a good pro IP article ever.&#8221; This is true. </p></blockquote> <p>As I <a href="https://inpropriapersona.com/2009/03/economists-abolish-copyright-patents-to.html">mentioned earlier</a>, this is an interesting perspective I hope to explore further, though not from a libertarian point of view.</p> <div> Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://torrentfreak.com/economists-abolish-copyrightpatents-save-the-economy-090310/">Economists: Abolish Copyright &amp; Patents to Save the Economy</a> (torrentfreak.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.violeta.si/2009/02/intellectual-property-one-of-key.html">INTELLECTUAL PROPERTY, one of the key factors of sustainable growth in the modern world</a> (violeta.si)</li> </ul> </div> <div class="zemanta-pixie" style="margin-top:10px;height:15px;"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/7a0b4f4a-967d-4ac3-bb99-bd35923e5422/" title="Zemified by Zemanta"><img class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=7a0b4f4a-967d-4ac3-bb99-bd35923e5422" alt="Reblog this post [with Zemanta]" style="border:none;float:right;" /></a><span class="zem-script more-related"></span></div> "Economists: Abolish Copyright & Patents to Save the Economy" https://inpropriapersona.com/articles/economists-abolish-copyright-patents-to-save-the-economy/ Sun, 15 Mar 2009 22:30:00 +0000 a3016dd134c3d21c1fe26219b781af7d <p><a href="http://torrentfreak.com/economists-abolish-copyrightpatents-save-the-economy-090310/">Economists: Abolish Copyright &amp; Patents to Save the Economy</a>:</p> <blockquote><p>Two economists from Washington University have looked at current copyright and patent laws and concluded that they&#8217;re not good. The pair see current intellectual property laws as similar to &#8220;medieval trade monopolies&#8221; which were bad for the economy as a whole, and are calling for the system to be reformed.</p></blockquote> <p>An interesting perspective, and one in which I am currently exploring in a &#8220;thought-piece&#8221; paper for a class on law, technology and development. I expect to have more to say about this later.</p> <p><strong>Related articles by Zemanta</strong></p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/03/11/economists-call-for.html">Economists call for patent and copyright abolition</a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/03/beyond-economic-analysis-of.html">Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.violeta.si/2009/02/intellectual-property-one-of-key.html">INTELLECTUAL PROPERTY, one of the key factors of sustainable growth in the modern world</a> (violeta.si)</li> <li class="zemanta-article-ul-li"><a href="http://arstechnica.com/science/news/2009/03/study-markets-provide-an-alternative-to-patent-monopolies.ars">Study: free markets superior to patent monopolies</a> (arstechnica.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><a class="zemanta-pixie-a" title="Zemified by Zemanta" href="http://reblog.zemanta.com/zemified/9ef84d4d-6776-47f6-b1ae-a8f2e8c7bd64/"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/reblog_c.png?x-id=9ef84d4d-6776-47f6-b1ae-a8f2e8c7bd64" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related"> </span></div> "The Volokh Conspiracy - Applying the Fourth Amendment to the Internet: A General Approach" https://inpropriapersona.com/articles/the-volokh-conspiracy-applying-the-fourth-amendment-to-the-internet-a-general-approach/ Sun, 15 Mar 2009 19:00:00 +0000 ad44a1b23fd735cf30aa2ae53d4e809e <p class="zemanta-img" style="float: right; display: block; width: 212px; margin: 1em;"><a href="http://commons.wikipedia.org/wiki/Image:Bill_of_Rights_Pg1of1_AC.jpg"><img style="border: none; display: block;" src="http://upload.wikimedia.org/wikipedia/commons/thumb/7/79/Bill_of_Rights_Pg1of1_AC.jpg/202px-Bill_of_Rights_Pg1of1_AC.jpg" alt="The Bill of Rights, the first ten amendments t..." width="202" height="215" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:Bill_of_Rights_Pg1of1_AC.jpg">Wikipedia</a></span></p> <p><a href="http://volokh.com/posts/1235671894.shtml">The Volokh Conspiracy &#8211; Applying the Fourth Amendment to the Internet: A General Approach</a>:</p> <blockquote><p>This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.</p></blockquote> <div>This sounds like an extremely interesting piece in an area of law which I find fascinating. I look forward to reading it and thinking about it in more depth.</div> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><a class="zemanta-pixie-a" title="Zemified by Zemanta" href="http://reblog.zemanta.com/zemified/9b9abc33-1034-421e-ab8e-00e6d315ac5b/"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/reblog_c.png?x-id=9b9abc33-1034-421e-ab8e-00e6d315ac5b" alt="Reblog this post [with Zemanta]" /></a></div> "Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory" https://inpropriapersona.com/articles/beyond-economic-analysis-of-intellectual-property-the-need-for-social-and-cultural-theory/ Mon, 09 Mar 2009 18:15:00 +0000 8647e9849e2e2a1249c1bb031c1102ad <p><a href="http://uchicagolaw.typepad.com/faculty/2009/03/beyond-economic-analysis-of-intellectual-property-the-need-for-social-and-cultural-theory-madhavi-su.html">The University of Chicago Law School Faculty Blog: Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory (Madhavi Sunder):</a></p> <blockquote><p>Over the course of the last century intellectual property has grown exponentially, but its march into all corners of our lives and to the most destitute corners of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. Today intellectual property laws bear considerably upon central features of human flourishing, from the developing world&#8217;s access to food, textbooks, and essential medicines, to the ability of citizens everywhere to democratically participate in political and cultural discourse.</p> <p>Despite these real world changes, intellectual property scholars insist on explaining this field through the narrow lens of a particular economic vision.Intellectual property is understood solely as a tool to solve an economic &#8220;public goods&#8221; problem: nonrivalrous and nonexcludable goods such as music and scientific knowledge will be too easy to copy and share &#8211; thus wiping out any incentive to create them in the first place &#8211; without a monopoly right in the creations for a limited period of time.</p> <p>In a forthcoming book, iP: YouTube, MySpace, Our Culture, under contract with Yale University Press, I argue that an intellectual property law befitting our new participatory century must lift its gaze beyond the narrow goal of incentivizing the creation of more intellectual products to facilitating critical and autonomous participation in the cultural sphere. Modernity is not simply technology. A modern intellectual property law must promote our capacity to author our own lives. These are not too lofty concerns for intellectual property law. Recall that the first copyright statute in England, the Statute of Anne, subtitled &#8220;An Act for the Encouragement of Learning,&#8221; had as its aim nothing less than the promotion of Enlightenment itself.</p></blockquote> <p>An interesting approach that I&#8217;m looking forward to reading about in more depth</p> <p>Update: Rob Merges has a <a href="http://uchicagolaw.typepad.com/faculty/2009/03/ip-social-and-cultural-theory.html">response</a> to the above that is also quite interesting.</p> <blockquote><p>Professor Sunder&#8217;s main point is that economic analysis of IP is too narrow; it fails to capture some important things about what is happening in the IP landscape, and why it matters. And what is happening, she says, is that the conditions under which culture is created are changing &#8211; and changing fast.</p> <p>She is right that economic analysis is inadequate to the very difficult task of determining exactly how much IP is enough, and in some cases exactly how IP rights ought to be crafted and limited. I have come to see that the optimal number of IP rights is not something that economic analysis is really equipped to determine, at least not with the current set of tools we have available. (That&#8217;s why I have been delving into Locke, Kant, and Co. in researching my own forthcoming book.)</p></blockquote> <p><strong>Related articles by Zemanta</strong></p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-13578_3-10162315-38.html?part=rss&amp;subj=news">Copyright reform unlikely, advocates say</a> (news.cnet.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=b6434039-9358-490b-bd98-189fb0625db8" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "That Was the Copyright Year That Was (2008)" https://inpropriapersona.com/articles/that-was-the-copyright-year-that-was-2008/ Sat, 07 Mar 2009 00:42:00 +0000 2dfac7ff5d658f6392ac58406eb3b482 <p class="zemanta-img" style="float:right;display:block;width:212px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:US-CopyrightOffice-Logo.svg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/a/a3/US-CopyrightOffice-Logo.svg/202px-US-CopyrightOffice-Logo.svg.png" alt="Logo of the United States Copyright Office, in..." style="border:medium none;display:block;" height="202" width="202"></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:US-CopyrightOffice-Logo.svg">Wikipedia</a></span></p> <p><a href="http://law.marquette.edu/facultyblog/2009/01/20/that-was-the-copyright-year-that-was/">That Was the Copyright Year That Was</a> by Bruce E. Boyden of Marquette University Law School:</p> <blockquote><p>I recently compiled a list of the biggest developments in copyright law in 2008, based on a not very systematic survey. I thought it would be worth sharing here, as I know that I often wish for lists like this myself.</p></blockquote> <p><a href="http://law.marquette.edu/facultyblog/2009/01/20/that-was-the-copyright-year-that-was/">The above</a> is a useful listing of important copyright-related cases from 2008. For me, I think the following two stand out as having particularly broad importance to my interests:</p> <ul> <li><a href="http://en.wikipedia.org/wiki/Jacobsen_v._Katzer">Jacobsen v. Katzer</a>, <a href="http://caselaw.lp.findlaw.com/data2/circs/fed/081001p.pdf">535 F.3d 1373</a> (Fed. Cir. 2008), holding open-source licenses to be enforceable.</li> <li><a href="http://www.judicialview.com/Court-Cases/Civil-Procedure/First-Sale-Doctrine-Applies-to-eBay-Auction-of-AutoCAD-Software/Unresolved-Issue-of-Enforceability-of-License-Restrictions/10/3791&amp;print=1">Vernor v. Autodesk, Inc.</a>, <a href="http://www.judicialview.com/ajaxupload/upload_pdf/Computers_Technology/1216914125.pdf">555 F. Supp. 2d 1164</a> (W.D. Wash. 2008), applying the first-sale doctrine to software sales despite language in the original license saying otherwise.</li> </ul> <p>Of related interest is Patently-O&#8217;s &#8220;<a href="http://www.patentlyo.com/patent/patent_cases_2008/">Patent Cases 2008</a>&#8221; compendium of patent-related cases from last year.</p> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://techdirt.com/articles/20090113/2221133398.shtml">Psystar Back To A First Sale Defense Against Apple: Software Was Legally Purchased&#8230;</a> (techdirt.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/5b7d526d-a4fe-4c27-b111-aac16ec03190/" title="Zemified by Zemanta"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=5b7d526d-a4fe-4c27-b111-aac16ec03190" alt="Reblog this post [with Zemanta]"></a><span class="zem-script more-related"></span></div> "Law Librarians, Schools Propose Bold Move to Digital, Open Access Alternative" https://inpropriapersona.com/articles/law-librarians-schools-propose-bold-move-to-digital-open-access-alternative/ Thu, 05 Mar 2009 22:15:00 +0000 3d90b4f29ad27ebbcf933923fb14c335 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 180px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Open_Access_logo_PLoS.svg"><img class=" " title="Open Access logo designed by the Public Librar..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/f/f1/Open_Access_logo_PLoS.svg/300px-Open_Access_logo_PLoS.svg.png" alt="Open Access logo designed by the Public Librar..." width="180" height="254" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://www.libraryjournal.com/article/CA6641435.html&amp;">Law Librarians, Schools Propose Bold Move to Digital, Open Access Alternative &#8211; Library Journal</a></p> <blockquote><p>In a broad call to action, a group of the nations&#8217; law schools and law librarians have signed the <a class="zem_slink" title="Durham Statement on Open Access to Legal Scholarship" rel="wikipedia" href="http://en.wikipedia.org/wiki/Durham_Statement_on_Open_Access_to_Legal_Scholarship">Durham Statement on Open Access to Legal Scholarship</a>. In essence, the statement urges law schools to adopt digital communication, forgo print, and publish, archive, and widely disseminate its scholarship online.</p></blockquote> <p>My first thought is that law schools are often terribly slow to change. Then again, I&#8217;ve seen a general acceptance of open access ideas in the legal academy (<a href="http://www.ssrn.com/">SSRN</a>, for example), so maybe this is not that out there after all. Part of me things, too, that perhaps open access will be easier to achieve than simply getting rid of paper!</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/06/social-science-research-network-ssrn.html">Social Science Research Network (SSRN)</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/02/legal-scholarship-electronic-publishing.html">Legal Scholarship, Electronic Publishing, and Open Access</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.hyperorg.com/blogger/2009/02/21/law-libraries-ask-for-open-access/">Law libraries ask for open access</a> (hyperorg.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: medium none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=5312d4d1-95a4-44de-81d3-d9a1debb0ac2" alt="" /><span class="zem-script undefined"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Amazon retreats on Kindle’s text-to-speech issue" https://inpropriapersona.com/articles/amazon-retreats-on-kindles-text-to-speech-issue/ Sat, 28 Feb 2009 17:09:00 +0000 bc365f5efe94bc94b05a02add34a675c <p class="zemanta-img" style="float:right;display:block;width:160px;margin:1em;"><a href="http://www.daylife.com/image/07Fu7uxesgbpa?utm_source=zemanta&amp;utm_medium=p&amp;utm_content=07Fu7uxesgbpa&amp;utm_campaign=z1"><img src="http://cache.daylife.com/imageserve/07Fu7uxesgbpa/150x97.jpg" alt="NEW YORK - FEBRUARY 09: Amazon.com founder an..." style="border:medium none;display:block;" height="97" width="150" /></a><span class="zemanta-img-attribution">Image by <a href="http://www.daylife.com/source/Getty_Images">Getty Images</a> via <a href="http://www.daylife.com/">Daylife</a></span></p> <p><a href="http://news.cnet.com/8301-1023_3-10184406-93.html">Amazon retreats on Kindle&#8217;s text-to-speech issue | Digital Media &#8211; CNET News</a>:</p> <blockquote><p>Apparently, Amazon won&#8217;t fight the publishing industry on the issue of whether the Kindle 2&#8217;s text-to-speech function violates copyright.</p> <p>The retailer, which makes the popular Kindle electronic-book reader, announced late Friday that the company is modifying systems to allow authors and publishers to decide whether to enable Kindle&#8217;s text-to-speech function on a per-title basis.</p> <p>Amazon starts its press release with tough talk. &#8220;Kindle 2&#8217;s experimental text-to-speech feature is legal,&#8221; Amazon wrote. &#8220;No copy is made, no derivative work is created, and no performance is being given.&#8221;</p> <p>But then the company says: &#8220;We strongly believe many rights holders will be more comfortable with the text-to-speech feature if they are in the driver&#8217;s seat,&#8221; Amazon said.</p> <p>There is no mistaking what happened here: Amazon caved. For Kindle owners interested in the text-to-speech feature, the reader just lost value.</p> </blockquote> <p>See also:</p> <ul> <li><a href="https://inpropriapersona.com/2009/02/copyright-fight-brewing-over-amazons.html">Copyright Fight Brewing Over Amazon&#8217;s Kindle 2</a></li> </ul> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.techmeme.com/090227/p93">Amazon Backs off Text-to-Speech Feature in Kindle (Brad Stone/Bits)</a> (techmeme.com)</li> <li class="zemanta-article-ul-li"><a href="http://web.archive.org/web/20100104015307/http://techwag.com/index.php/2009/02/28/amazon-caves-on-text-to-speech/">Amazon caves on text to speech</a> (techwag.com)</li> <li class="zemanta-article-ul-li"><a href="http://news.cnet.com/8301-1023_3-10172412-93.html?part=rss&amp;subj=news">IBM voice ace: Kindle no threat to audio books</a> (news.cnet.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.readwriteweb.com/archives/amazon_caves_to_authors_guild.php">Amazon Caves to Author&#8217;s Guild; Muzzles Reading Robots</a> (readwriteweb.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/a7763410-a7bf-46d3-b495-60c151253cdc/" title="Zemified by Zemanta"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=a7763410-a7bf-46d3-b495-60c151253cdc" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related"></span></div> "Legal Scholarship, Electronic Publishing, and Open Access" https://inpropriapersona.com/articles/legal-scholarship-electronic-publishing-and-open-access/ Fri, 27 Feb 2009 17:05:00 +0000 2b0edcf72381954935c6110f1530766d <p class="zemanta-img" style="float:right;display:block;width:212px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:CourtGavel.JPG"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/b/b2/CourtGavel.JPG/202px-CourtGavel.JPG" alt="Old gavel and court minutes displayed at the M..." style="border:medium none;display:block;" height="202" width="202" /></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:CourtGavel.JPG">Wikipedia</a></span></p> <p><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1350138">SSRN-Legal Scholarship, Electronic Publishing, and Open Access: Transformation or Steadfast Stagnation? by Stephanie Plotin</a>:</p> <blockquote><p><span style="font-weight:bold;">Abstract: </span><br /> This article uses a social shaping of technology perspective, which studies the complex interactions between technology and the culture of a discipline, to investigate the evolution of legal scholarship in the digital age, and to determine how the open access movement has influenced various forms of legal scholarship, particularly law reviews, their online companions, and legal blogs.</p> </blockquote> <p>An interesting look at open access in the law journal context:</p> <blockquote><p>A sociotechnical or social shaping of technology perspective is helpful in<br /> explaining how technology and electronic publishing have impacted scholarly legal<br /> communication. Those taking an information-processing view, focusing on the<br /> technical features of electronic media, have either predicted sweeping changes that<br /> have not come to pass or are advocating the adoption of technical changes without<br /> considering the existing academic culture. In contrast, a focus on scholarly legal<br /> culture and the institutions and participants interacting within it explains why<br /> certain things (law reviews) have mostly stayed the same, while other forms (electronic repositories, legal blogs) have embraced the possibilities of the available<br /> technology. Technology influences legal scholarship and culture, legal scholarship<br /> and culture influence technology, and the results require an understanding<br /> of both.</p> </blockquote> <p>The article includes a discussion about legal blogs:</p> <blockquote><p>Just as specialized law reviews provided a forum for &#8220;outsider scholar-<br /> ship,&#8221; legal blogs provide an electronic forum for discussions about topics such as<br /> critical race theory, affirmative action, feminism, and sexual orientation law. These blogs can provide a virtual community where scholars can connect and<br /> express views that are not well represented in mainstream legal publications, in<br /> addition to connecting with a wider community of readers. . . . Finally, the popularity of legal blogs can be seen as an indicator of larger<br /> changes in legal scholarship.</p> </blockquote> <p>See also:</p> <ul> <li><a href="http://lsolum.typepad.com/legaltheory/2009/02/plotin-on-open-access.html">Plotin on Open Access</a> at the Legal Theory Blog by Lawrence Solum</li> </ul> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2008/06/social-science-research-network-ssrn.html">Social Science Research Network (SSRN)</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="https://inpropriapersona.com/2009/02/another-attempt-to-repeal-open-access.html">Another Attempt to Repeal Open Access</a> (inpropriapersona.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.hyperorg.com/blogger/2009/02/26/berkman-peter-suber-on-the-future-of-open-access/">Peter Suber on the future of open access</a> (hyperorg.com)</li> <li class="zemanta-article-ul-li"><a href="http://www.hyperorg.com/blogger/2009/02/21/law-libraries-ask-for-open-access/">Law libraries ask for open access</a> (hyperorg.com)</li> </ul> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/c55fbfe8-d078-4269-b52f-9797c59d95f8/" title="Zemified by Zemanta"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=c55fbfe8-d078-4269-b52f-9797c59d95f8" alt="Reblog this post [with Zemanta]" /></a><span class="zem-script more-related"></span></div> "The Office of Legal Counsel" https://inpropriapersona.com/articles/the-office-of-legal-counsel/ Thu, 19 Feb 2009 01:09:00 +0000 8133cf9130d53f7feee11c717604f579 <p class="zemanta-img" style="float:right;display:block;width:212px;margin:1em;"><a href="http://commons.wikipedia.org/wiki/Image:US_Supreme_Court_Building.jpg"><img src="http://upload.wikimedia.org/wikipedia/commons/thumb/3/32/US_Supreme_Court_Building.jpg/202px-US_Supreme_Court_Building.jpg" alt="U.S. Supreme Court building." style="border:medium none;display:block;" height="152" width="202"></a><span class="zemanta-img-attribution">Image via <a href="http://commons.wikipedia.org/wiki/Image:US_Supreme_Court_Building.jpg">Wikipedia</a></span></p> <p><a href="http://balkin.blogspot.com/2009/02/is-office-of-legal-counsel.html">Is the Office of Legal Counsel Constitutional? Some notes on the American Conseil Constitutionnel &#8211; Balkinization</a>:</p> <blockquote><p>The bottom line is that the OLC has become one of the most important law making bodies in our constitutional system, creating binding law that affects what is by far the largest branch of our government. For this reason, we should begin to understand the OLC more in the way that we view the Supreme Court and the federal courts of appeals. That is, we should begin to think of it more and more as a quasi-judicial institution.</p></blockquote> <p>An interesting discussion of the &#8220;Office of Legal Counsel&#8221; and it&#8217;s role as a kind of executive branch supreme court that specializes only in advisory opinions, something the actual, judicial branch Supreme Court is forbidden to do.</p> <div style="margin-top:10px;height:15px;" class="zemanta-pixie"><a class="zemanta-pixie-a" href="http://reblog.zemanta.com/zemified/5097054a-9e2b-4926-b75d-ec67eb34edc3/" title="Zemified by Zemanta"><img style="border:medium none;float:right;" class="zemanta-pixie-img" src="http://img.zemanta.com/reblog_c.png?x-id=5097054a-9e2b-4926-b75d-ec67eb34edc3" alt="Reblog this post [with Zemanta]"></a></div> "Copyright Fight Brewing Over Amazon’s Kindle 2" https://inpropriapersona.com/articles/copyright-fight-brewing-over-amazons-kindle-2/ Mon, 16 Feb 2009 02:35:00 +0000 0223b51f08dafaa88de9bf559c3dd976 <p><a href="http://blog.wired.com/27bstroke6/2009/02/copyright-fight.html">Copyright Fight Brewing Over Amazon&#8217;s Kindle 2 | Threat Level from Wired.com</a>:</p> <blockquote><p>&#8220;They don&#8217;t have the right to read a book out loud,&#8221; said Paul Aiken, executive director of the Authors Guild. &#8220;That&#8217;s an audio right, which is derivative under copyright law.&#8221;</p></blockquote> <p>But&#8230;</p> <blockquote><p>Wendy Seltzer, a legal scholar at the Berkman Center for Internet &amp; Society at Harvard University, said no rights are being violated. Amazon&#8217;s newest gadget, she said, &#8220;is enabling another feature to make further lawful uses of that book.&#8221;</p></blockquote> <p>And&#8230;</p> <blockquote><p>Michael Kwun, of the Electronic Frontier Foundation, has an in-depth posting on the EFF&#8217;s DeepLinks Blog that he said debunks the guild&#8217;s theory. He wrote that the synthesized voice is not a derivative work, as the guild claims, that is &#8220;based upon one or more preexisting works which, as a whole, represents an original work of authorship.&#8221;</p></blockquote> <p>I suspect that the Author&#8217;s Guild is incorrect on this as a matter of copyright law. I wonder, though, if perhaps they are speaking in regards to a contract that might exist with Amazon that is more restrictive than copyright generally?</p> <p><strong>Related articles</strong></p> <ul> <li><a href="http://www.eff.org/deeplinks/2009/02/does-authors-guild-want-sue-you-reading-aloud-your">Does the Authors Guild Want to Sue You for Reading Aloud to Your Kids?</a> (EFF)</li> <li><a href="http://online.wsj.com/article/SB123419309890963869.html">New Kindle Audio Feature Causes a Stir</a> (WSJ)</li> <li><a href="http://r.zemanta.com/?u=http%3A/www.telegraph.co.uk/scienceandtechnology/technology/technologynews/4593784/Kindle-2-violates-copyright-claims-Authors-Guild.html&amp;a=3122182&amp;rid=59f3b24a-369d-4068-8080-6d2ab9c444c8&amp;e=a92a3a0830ea64c9d8358bf5f5ba3ca4">Kindle 2 &#8216;violates copyright&#8217; claims Authors Guild</a> (telegraph.co.uk)</li> <li><a href="http://www.mediabistro.com/galleycat/authors/cory_doctorow_criticizes_authors_guild_108386.asp?c=rss">Cory Doctorow Criticizes Authors Guild</a> (mediabistro.com)</li> <li><a href="http://www.geeknewscentral.com/archives/008611.html">The Kindle, Copyright, and Neil Gaiman</a> (geeknewscentral.com)</li> <li><a href="http://www.crunchgear.com/2009/02/11/authors-guild-calls-kindle-2s-text-to-speech-software-illegal/">Author&#8217;s Guild calls Kindle 2&#8217;s text-to-speech software illegal</a> (crunchgear.com)</li> <li><a href="http://blog.prathambooks.org/2009/02/gagging-your-books.html">Gagging Your Books</a> (prathambooks.org)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=59f3b24a-369d-4068-8080-6d2ab9c444c8" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Making Court Archives Available to All" https://inpropriapersona.com/articles/making-court-archives-available-to-all/ Sun, 15 Feb 2009 03:06:00 +0000 a8ba0680bffb3cbaed56ac336537db72 <p>From the New York Times, &#8220;<a href="http://www.nytimes.com/2009/02/13/us/13records.html">An Effort to Upgrade a Court Archive System to Free and Easy</a>&#8220;:</p> <blockquote><p>For those searching for federal court decisions, briefs and other legal papers, there is no <a title="More information about Google Inc" href="http://topics.nytimes.com/top/news/business/companies/google_inc/index.html?inline=nyt-org">Google</a>. Instead, there is Pacer, the government-run <a title="Public Access to Court Electronic Records system." href="http://pacer.psc.uscourts.gov/">Public Access to Court Electronic Records</a> system designed in the bygone days of screechy telephone modems. Cumbersome, arcane and not free, it is everything that Google is not. Recently, however, a small group of dedicated open-government activists teamed up to push the court records system into the 21st century &#8212; by simply grabbing enormous chunks of the database and giving the documents away, to the great annoyance of the government.</p></blockquote> <p>This lack of access has always rubbed me the wrong way. The courts are a public system and the records ought to be open and accessible. Plus, old archaic systems commonly used in the legal research arena are simply not as effective at providing quick and ready access to information as more modern search engines developed for the Internet at large. This appears to be true despite the greater focus and specificity possible with search systems dedicated to legal topics.</p> <p>On the other hand, there is a real problem of privacy issues in many court filings. But simply relying on &#8220;hiding&#8221; protected and private information behind obscurity is no protection. Courts, clerks and lawyers need to make sure to redact private information according to court rules (such as social security numbers, data on children, and so on).</p> <div class="zemanta-articles">Related articles:</p> <ul class="zemanta-articles"> <li><a href="http://crookedtimber.org/2009/02/13/how-free-is-free/">How free is free?<br /> </a> (from Crooked Timber)</li> </ul> </div> "Science, pseudoscience, and the law" https://inpropriapersona.com/articles/science-pseudoscience-and-the-law/ Sat, 14 Feb 2009 23:54:00 +0000 608df9fe95bae62692344c32757c0494 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 180px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:US-CourtOfFederalClaims-Seal.svg"><img class=" " title="Seal of the United States Court of Federal Cla..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/8/85/US-CourtOfFederalClaims-Seal.svg/300px-US-CourtOfFederalClaims-Seal.svg.png" alt="Seal of the United States Court of Federal Cla..." width="180" height="180" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://www.slaw.ca/2009/02/14/science-pseudoscience-and-the-law/">Science, pseudoscience, and the law &gt;&gt; Slaw</a>:</p> <blockquote><p>Following up on Simon&#8217;s vaccines post from earlier this week comes the encouraging news that on Thursday (happy 200, Charles Darwin) the U.S. Court of Federal Claims issued decisions in three vaccine-related test cases rejecting any causal link between vaccines and autism.</p> <p>Yet, much like with the Pennsylvania victory in the battle over teaching evolution, I can only manage a half-hearted cheer at this latest triumph of science over superstition and ignorance. That it is even necessary to take this to trial &#8211; to say nothing of the refusal of so many to accept the correctness of the verdict &#8211; bears witness to how dismally science has failed to deliver its message to the broader public. The vaccine-autism hypothesis has been repeatedly debunked, yet millions of people still prefer to get medical information from Jenny McCarthy than from the Centers for Disease Control.</p></blockquote> <p>Alex Manevich then goes on to connect the rule of law with respect for science:</p> <blockquote><p>Both as citizens and as lawyers, this is our battle as well. Science and the rule of law go hand in hand. We want courts to decide guilt or liability based on causality and reliable evidence, not on mere hunch or coincidence. We expect one set of laws to apply to everyone, and that people cannot pick and choose only those they find convenient or agree with. We assume that laws are neither arbitrary nor secret, so that we can know the rules we are expected to adhere to.</p> <p>A society that fails to understand or respect science implicitly endangers respect for the rule of law, and vice versa. And, I would argue, when the law tolerates or, worse, endorses pseudoscience, it eventually risks undermining its own legitimacy.</p></blockquote> <p>He makes a powerful point. The <a href="http://www.slaw.ca/2009/02/14/science-pseudoscience-and-the-law/">whole article</a> is worth reading.</p> <h6 class="zemanta-related-title" style="font-size: 1em;">Related articles</h6> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.telegraph.co.uk/health/4603884/MMR-vaccine-not-linked-to-autism-US-court-rules.html&amp;a=3141356&amp;rid=a1391aab-5549-4535-a558-a47f067ac867&amp;e=99a60a85cee0770b202a7c124008ce79">MMR vaccine not linked to autism US court rules</a> (telegraph.co.uk)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www10.nytimes.com/aponline/2009/02/12/washington/AP-Autism-Ruling.html%3F_r%3D5%26partner%3Drss%26emc%3Drss&amp;a=3142963&amp;rid=a1391aab-5549-4535-a558-a47f067ac867&amp;e=437415073ac17aae11c58ccd6b0a6f60">Court Says Vaccine Not to Blame for Autism</a> (nytimes.com)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=30abeb80-8806-40e2-8544-338296ca38b0" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Reflecting on Darwin" https://inpropriapersona.com/articles/reflecting-on-darwin/ Sat, 14 Feb 2009 22:38:00 +0000 b84c87458cd983668c09e8d238eeea2c <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Charles_Darwin_by_Julia_Margaret_Cameron_2.jpg"><img class="zemanta-img-configured" title="Charles Darwin, photographed by Julia Margaret..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/8/8a/Charles_Darwin_by_Julia_Margaret_Cameron_2.jpg/300px-Charles_Darwin_by_Julia_Margaret_Cameron_2.jpg" alt="Charles Darwin, photographed by Julia Margaret..." width="300" height="377" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>As many are probably aware, the 12th of February was the 200th anniversary of Darwin&#8217;s birth. It seems appropriate, then, to reflect on the latest attempts to challenge evolutionary biology through a belief in what is called &#8220;intelligent design.&#8221; But first, I think, it&#8217;s important to note that much has changed since Darwin first proposed his theory, and referring to modern evolutionary biology as &#8220;Darwinism&#8221; is in many ways misleading (<a href="http://judson.blogs.nytimes.com/2008/07/15/lets-get-rid-of-darwinism/?scp=7&amp;sq=forget%20darwin&amp;st=cse">Let&#8217;s Get Rid of Darwinism &#8211; Olivia Judson Blog &#8211; NYTimes.com</a>):</p> <blockquote><p>&#8220;Why Darwin was wrong about X&#8221;; &#8220;Was Darwin wrong about Y?&#8221;; &#8220;What Darwin didn&#8217;t know about Z&#8221;: these are common headlines in newspapers and magazines, in both the biological and the general literature. Then there are the words: Darwinism (sometimes used with the prefix &#8220;neo,&#8221; Darwinist (ditto), Darwinian.</p> <p>Why is this a problem? Because it&#8217;s all grossly misleading. It suggests that Darwin was the beginning and the end, the alpha and omega, of evolutionary biology, and that the subject hasn&#8217;t changed much in the 149 years since the publication of the &#8220;Origin.&#8221;</p> <p>He wasn&#8217;t, and it has. Although several of his ideas &#8212; natural and sexual selection among them &#8212; remain cornerstones of modern evolutionary biology, the field as a whole has been transformed. If we were to go back in a time machine and fetch him to the present day, he&#8217;d find much of evolutionary biology unintelligible &#8212; at least until he&#8217;d had time to study genetics, statistics and computer science.</p></blockquote> <p>The &#8220;theory of evolution&#8221; has itself evolved. Of course, many dismiss it as &#8220;merely a theory&#8221;&#8211;but as the scientists and teachers in <a href="http://www.pbs.org/wgbh/nova/id/">Nova&#8217;s program &#8220;Judgement Day&#8221;</a> point out, that does science a disservice. A theory is not just an idea. It is well-supported, integrating facts and discoveries of all kinds. Above all, it must explain the natural world in a testable fashion. That is, evolution creates a testable prediction, and new discoveries support it. Thus in the case of evolutionary theory, facts keep supporting evolution and extending it, not contradicting it (genetics, new DNA research, new fossil discoveries that demonstrate the &#8220;links&#8221; in evolution).</p> <p>But nevertheless the controversy continues outside of science (<a href="http://www.nytimes.com/2009/01/04/education/edlife/books-t.html">Four Stakes in the Heart of Intelligent Design &#8211; NYTimes.com</a>):</p> <blockquote><p>As recent court cases in Kansas, Georgia and Pennsylvania demonstrate, we are still, more than 80 years after the so-called Scopes monkey trial, suing one another over whether evolution ought to be taught in the schools, and for those who are opposed, it&#8217;s not just an idle matter.</p> <p>. . .&#8221;<a class="zem_slink" title="Teach the Controversy" href="http://en.wikipedia.org/wiki/Teach_the_Controversy" rel="wikipedia">Teach the controversy</a>&#8221; is the watchword of those who want to smuggle the notion of intelligent design into the school curriculum. . . . Like most evolutionary scientists, [Jerry A. Coyne] contends that there is no controversy to teach, because intelligent design, which is really creationism in a new garment, is simply not a legitimate scientific theory. But if there is no controversy there is certainly an issue &#8212; one that might profitably be studied not in biology class but in history or civics. It reveals a lot about the great American tradition of anti-intellectualism, which seems to be getting stronger, not weaker, even as the country supposedly becomes better educated, and about the strange way we&#8217;re turning the court system, of all places, into a referee on scientific principles.</p></blockquote> <p>Intelligent design ought to be taught, but I agree with the above that it ought to be taught in history, civics, or similar classes. It is a fascinating look at human thought, belief, and psychology, but it is simply not science.</p> <p>See also:</p> <ul> <li><a href="http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf">Kitzmiller v. Dover</a> (PDF)</li> <li><a href="http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School_District">Kitzmiller v. Dover</a> (Wikipedia)</li> </ul> <p>Related articles by Zemanta</p> <ul class="zemanta-article-ul"> <li class="zemanta-article-ul-li"><a href="http://www.boingboing.net/2009/02/12/on-darwins-birthday.html">On Darwin&#8217;s birthday, 4 in 10 believe in evolution</a> (boingboing.net)</li> <li class="zemanta-article-ul-li"><a href="http://r.zemanta.com/?u=http%3A/www.guardian.co.uk/commentisfree/andrewbrown/2009/feb/10/religion-damienhirst&amp;a=3133958&amp;rid=5ee8f79d-3739-46bd-a303-302fd5c0e2cf&amp;e=df44e3e8a83fd6e6e584caf1fbd736a2">Darwin as a religious figure</a> (guardian.co.uk)</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=69d45d26-35de-424d-8344-fc83658a9de6" alt="" /></div> "Another Attempt to Repeal Open Access" https://inpropriapersona.com/articles/another-attempt-to-repeal-open-access/ Sat, 14 Feb 2009 18:00:00 +0000 e5ad3dd4310e4277c196fd015895a553 <p>Peter Suber <a href="http://www.earlham.edu/%7Epeters/fos/2009/02/conyers-bill-is-back.html">writes</a>:</p> <blockquote><p>Yesterday Rep. John Conyers (D-MI) re-introduced the <a href="http://hdl.loc.gov/loc.uscongress/legislation.111hr801">Fair Copyright in Research Works Act</a>. . . . The premise of the bill, urged by the publishing lobby, is that the NIH policy somehow violates copyright law. The premise is false and cynical. If the NIH policy violated copyrights, or permitted the violation of copyrights, publishers wouldn&#8217;t have to back this bill to amend US copyright law. Instead, they&#8217;d be in court where they&#8217;d already have a remedy.</p></blockquote> <p>For more, see:</p> <ul> <li><a href="http://www.earlham.edu/%7Epeters/fos/newsletter/10-02-08.htm#nih">A bill to overturn the NIH policy<br /> </a></li> <li><a href="http://news.slashdot.org/article.pl?sid=09/02/14/1319259">New Bill Would Repeal NIH Open Access Policy</a> (Slashdot)</li> </ul> <p>As well as my law review article on the subject of NIH&#8217;s open-access policy, available at SSRN:</p> <ul> <li><a href="http://ssrn.com/abstract=1147427">The Impact of Government-Mandated Public Access to Biomedical Research: An Analysis of the New NIH Depository Requirements</a></li> </ul> "Cooperative Workers May Not be Fired in Retaliation" https://inpropriapersona.com/news/2009/cooperative-workers-may-not-be-fired-in-retaliation/ Mon, 09 Feb 2009 01:14:00 +0000 e526ba46f26a7ebf9c2be9923b1278e3 <p>From the <a href="http://www.nytimes.com/2009/01/27/washington/27scotus.html?partner=permalink&amp;exprod=permalink">New York Times</a>:</p> <blockquote><p> Employees fired after cooperating in sexual harassment investigations may sue for retaliation, the Supreme Court ruled Monday in a case concerning the scope of a federal law barring sex discrimination in the workplace.</p> </blockquote> <p><font color="#666666">If it seems obvious that a worker who cooperates with an investigation that reveals sexual harassment by her supervisor should be protected from retaliatory firing by the employer as a result of that cooperation—well, it wasn’t obvious to everyone! The 6th Circuit had ruled otherwise, for example.</font></p> <p><font color="#666666">What was the behavior of the supervisor at issue?</font></p> <blockquote><p> According to court papers summarizing her accusations, Mr. Hughes seemed to think it amusing to grab his genitals and ask Ms. Crawford to show him her breasts. </p> <p>At the conclusion of the investigation, Mr. Hughes received an oral reprimand. Ms. Crawford and two other women who had made accusations against him were fired.</p> </blockquote> <p><font color="#666666">The employer argued that because Ms. Crawford had only “cooperated,” she was not entitled to the statutory protections under the retaliation prohibition found in section 704(a) of <a href="http://www.eeoc.gov/policy/vii.html">Title VII</a>, 42 U.S.C. §2000e-3a (2007), since it prohibits retaliation for having “opposed” discrimination. In other words, “cooperation” was not “opposition,” and thus was not protected under the statute.</font></p> <p><font color="#666666">From the opinion:</font></p> <blockquote><p> “Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question,” Justice David H. Souter wrote for the court.</p> </blockquote> <p><font color="#666666">See also:</font></p> <ul> <li><a href="http://www.npr.org/templates/story/story.php?storyId=99885670">Court Rules For Worker In Retaliation Case</a> – NPR <li><a href="http://web.archive.org/web/20090218002650/http://www.google.com:80/hostednews/ap/article/ALeqM5ieHG7bMUrBAI8PwbWG8qWM9-d95wD95V1PR83">Court rules for worker over retaliation</a> &#8211; Associated Press<a href="http://www.law.washington.edu/directory/Profile.aspx?ID=155"><img style="display:inline;margin-left:0;margin-right:0;" height="100" src="http://www.law.washington.edu/directory/images/Schnapper.jpg" width="75" align="right"></a> <li><a href="http://money.cnn.com/2009/01/26/news/economy/scotus_retaliation/?postversion=2009012613">Supreme Court finds for workplace whistle-blower</a> – CNN <li><a href="http://otd.oyez.org/cases/2008/crawford-v-metropolitan-government-nashville">Crawford v. Metropolitan Government of Nashville</a></li> </ul> <p><font color="#666666"><em>Disclosure Note: My Employment Discrimination professor, <a href="http://www.law.washington.edu/directory/Profile.aspx?ID=155">Eric Schnapper</a> of the University of Washington School of Law, worked on this case on the plaintiff’s behalf. </em></font></p> "The Exclusionary Rule at Risk" https://inpropriapersona.com/articles/the-exclusionary-rule-at-risk/ Tue, 03 Feb 2009 01:15:00 +0000 d5f9d3b681d8f889edf447fc5f44416e <blockquote><p>A longstanding part of U.S. law, known as the exclusionary rule, is getting bruised. The rule requires courts to exclude &#8211; or throw out &#8211; some evidence seized by law enforcement through illegal searches.</p> <p>But a ruling last month by the Supremes allowed the prosecution of an Alabama man on drug-possession and gun-possession charges despite the fact that the contraband was found through an illegal search. The 5-to-4 decision in <a href="http://www.supremecourtus.gov/opinions/08pdf/07-513.pdf">Herring v U.S.</a> is being hailed as perhaps the start of the fulfillment of a longtime conservative dream.</p></blockquote> <p>For more, see:</p> <ul> <li><a href="http://blogs.wsj.com/law/2009/02/02/defendants-ability-to-suppress-evidence-taking-a-hit/">Defendants&#8217; Ability to Suppress Evidence Taking a Hit</a> in the Wall Street Journal</li> <li><a href="https://inpropriapersona.com/2008/07/why-does-us-have-exclusionary-rule.html">Why Does the U.S. Have an Exclusionary Rule?</a></li> </ul> "The Long Road to Open Access" https://inpropriapersona.com/articles/the-long-road-to-open-access/ Mon, 24 Nov 2008 01:53:00 +0000 be0f4e1b04aa65473f9a50985de3f7e2 <p><a title="Cod. 38 fol. 18 [3]" href="http://www.flickr.com/photos/11987933@N03/2879222842/"><img class="alignright" title="&quot;Cod. 38 fol. 18&quot; from Flickr user Bibliotheek Kortrijk, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm4.static.flickr.com/3150/2879222842_da7d652048_m.jpg" alt="Cod. 38 fol. 18 [3]" width="240" height="162" /></a>An intriguing, far-ranging perspective on scholarly publishing that ties early 3rd century revolutions in scholarly publishing with modern trends towards open access and digital archiving:</p> <blockquote><p>Instead of using the noble scroll, Origen decided to take advantage of the page structure of the humble codex. Dividing each of two facing pages into three columns each, he began placing six texts side by side to compare them word for word. This monumental undertaking ultimately required many codices and is known as the Hexapla.</p> <p>Origen also introduced a form of critical reading that was rather uncommon in the 3<sup>rd</sup> century. Until then, writing was little more than a way to externalize memory. Reading was really a way to help reciting. The reader read aloud and, so to speak, was inhabited by the text projected by his own voice. Critical reading, by contrast, seeks to scrutinize the text and engineers a psychological space, a sense of distance, where the reader has an opportunity to exert his critical faculties.</p></blockquote> <p>The description above reminds me of the critical tie that exists between <a title="A Pretext for Writing: Prologues, Epilogues, and the Notion of Paratext" href="http://papers.ssrn.com/abstract=1141062">paratext, text and readers</a>, something I&#8217;ve been fascinated about for years (and a connection I would love to carry into an analysis of legal writings and texts).</p> <p>He continues into the modern world of academic publishing:</p> <blockquote><p>This very first phase in the transition to the digital world reminds us that in any communication system, it is important to look at who can produce documents, who can preserve them, who can organize them in order to facilitate retrieval, who has access, and what can be done with the accessed document. A number of rules long organized around copyright laws were suddenly superseded by licensing rules that are contractual in nature. Also, 10 years ago, the art of contracting licences was quite esoteric among librarians. Meanwhile, we academics were going on with our usual business, largely impervious to the sea change that was taking place under our noses. As authors, academics act largely like peacocks and want to be featured in the &#8220;best&#8221; journals, whatever the cost to the library; as readers, academics want access to everything and if it is not available, they view it either as the fault of the librarians or as the responsibility of the university administrators. Again, as readers, academics simply do not see publishers and pricing issues. The same is almost as true of academics as authors: how many know the publisher of a coveted journal title?</p></blockquote> <p>And a problem that those in libraries &#8211; especially anyone working on a budget in a library &#8211; knows all too well:</p> <blockquote><p>Very few firms dominate academic publishing, and they extract profits that can reach and even exceed 40 per cent before taxes. Let us remember that we are talking about research articles made possible by large amounts of public money supporting research and universities. They are given away by their authors when they sign their rights away. These articles are peer reviewed for free by other researchers. The result is then sold to libraries, often supported by public money.</p></blockquote> <p>Then he moves on to open access, a topic <a title="Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks" href="http://papers.ssrn.com/abstract=1127571">dear to my heart</a>, and describes some of the recent moves towards open access (or, in terms of the NIH, what I prefer to call &#8220;<a title="The Impact of Government-Mandated Public Access to Biomedical Research: An Analysis of the New NIH Depository Requirements" href="http://papers.ssrn.com/abstract=1147427">public access</a>,&#8221; since much of the freedom associated with open access is removed, leaving mostly &#8211; but arguably most critically and importantly &#8211; the freedom to read a work without paying an exorbitant fee):</p> <blockquote><p>For open access, the most essential step emerged when funding agencies began to realize that it was to everybody&#8217;s benefit, including their own, to have open access to the literature they funded. The Wellcome trust in the UK, was a leader in this regard, but some American and European institutions followed quickly. The National Institutes of Health (NIH) in the United States became a battle ground between publishers and open access supporters. Ultimately, open access won despite the deep pockets and lobbying efforts of the publishers. In December 2007, the large omnibus law signed by President Bush contained a provision stating that all research papers financed by NIH had to be deposited in NIH&#8217;s repository at most 12 months after publication. Other funding institutes began to follow suit, notably Canadian Institutes of Health Research in Canada.</p></blockquote> <p>(For more, see also the <a href="http://www.slaw.ca/2008/11/21/taking-the-long-view-guedon-and-changing-technologies/">Taking the Long View: Guedon and Changing Technologies</a> at <a href="http://www.slaw.ca">Slaw.ca</a>.)</p> "Why Does the U.S. Have an Exclusionary Rule?" https://inpropriapersona.com/articles/why-does-the-u-s-have-an-exclusionary-rule/ Mon, 21 Jul 2008 18:30:00 +0000 0c2d2ebbb4cf5da9f747df741d0a5a2e <blockquote><p>In my view, the fact that criminal procedure rules are judge-made led fairly directly to the exclusionary rule. Put simply, the exclusionary remedy is the one remedy that judges can completely control. There are a variety of ways to enforce rules of criminal investigations, such as lawsuits, criminal prosecutions, and internal discipline. But all of these alternatives tend to require the cooperation of other branches. The rules governing civil lawsuits are largely under the legislature&#8217;s control. Legislatures can regulate jurisdiction, create procedural hurdles, limit damages, and the like. And criminal prosecutions and internal discipline require the cooperation of the executive branch. Someone in the executive branch needs to see the violation as a major problem and needs to take action to enforce the law.</p></blockquote> <p>Interesting article by Orin Kerr. See:<br /> <a href="http://volokh.com/posts/1216498467.shtml">http://volokh.com/posts/1216498467.shtml </a></p> "Patent Gridlock Suppresses Innovation" https://inpropriapersona.com/articles/patent-gridlock-suppresses-innovation/ Thu, 17 Jul 2008 02:49:00 +0000 6df7387879f9c6c7c43f9dfe35128136 <blockquote><p>The Founders might have used quill pens, but they would roll their eyes at how, in this supposedly technology-minded era, we&#8217;re undermining their intention to encourage innovation. The U.S. is stumbling in the transition from their Industrial Age to our Information Age, despite the charge in the Constitution that Congress &#8220;promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.&#8221;</p></blockquote> <p>Interesting article from the WSJ:</p> <ul> <li><a href="http://online.wsj.com/article/SB121599469382949593.html">Patent Gridlock Suppresses Innovation</a></li> </ul> "Network Tech Locks SF Out of Network" https://inpropriapersona.com/articles/network-tech-locks-sf-out-of-network/ Wed, 16 Jul 2008 19:35:00 +0000 d1c59d3331457bd91aed9059fbe23666 <p>&#8220;A disgruntled city computer engineer has virtually commandeered San Francisco&#8217;s new multimillion-dollar computer network, altering it to deny access to top administrators even as he sits in jail on $5 million bail, authorities said Monday.&#8221; </p> <p>Craziness! See the SF Chronicle article at:</p> <p><a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/15/BAOS11P1M5.DTL">http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/15/BAOS11P1M5.DTL</a></p> "Evidence Faulted in Detainee Case" https://inpropriapersona.com/news/2008/evidence-faulted-in-detainee-case/ Tue, 01 Jul 2008 03:33:00 +0000 9939d9f852f33869d90b0b949ad0d533 <p><a href="http://www.nytimes.com/2008/07/01/washington/01gitmo.html?ex=1372564800&amp;en=c41ee39549766d6a&amp;ei=5124&amp;partner=permalink&amp;exprod=permalink">Evidence Faulted in Detainee Case &#8211; NYTimes.com</a>:</p> <blockquote> <p>With some derision for the Bush administration&#8217;s arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.</p> <p>The court compared that to the absurd declaration of a character in the Lewis Carroll poem &#8220;The Hunting of the Snark&#8221;: &#8220;I have said it thrice: What I tell you three times is true.&#8221;</p> </blockquote> <p>And the response defending the earlier military decisions?</p> <blockquote><p>&#8220;This case displays the inadequacies of having civilian courts inject themselves into military decision-making,&#8221; said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.</p></blockquote> <p>You mean civilian courts expect there to be <em>evidence</em>?</p> "Social Science Research Network (SSRN)" https://inpropriapersona.com/articles/social-science-research-network-ssrn/ Wed, 11 Jun 2008 13:30:00 +0000 87e7216a2ec2357ae8c5b4782c178102 <p>Sam Kamin at PrawfsBlawg points out that <a href="http://www.nytimes.com/2008/06/09/business/media/09link.html?_r=1&amp;adxnnl=1&amp;oref=slogin&amp;ref=technology&amp;adxnnlx=1212977329-kp+b+2EBLkar4cIi0nEBXA">the New York Times</a> has discovered SSRN. He <a href="http://prawfsblawg.blogs.com/prawfsblawg/2008/06/nyt-discovers-s.html">writes</a>:</p> <blockquote><p>It&#8217;s actually a pretty decent synopsis of the SSRN phenomenon, noting that it takes away the power of gatekeepers, makes scholarship available to the masses and lets them decide what&#8217;s worthy, etc. It points out that sexy still sells, noting that an essay with an unspeakable title is the 11th most downloaded article on the site (sorta NSFW, unless you&#8217;re an academic).</p></blockquote> <p>He also raises an interesting point:</p> <blockquote><p>It&#8217;s still not clear to me what SSRN means for the future of legal academics. I used to think that it would be the death of most law journals—that people would essentially self-publish their work on SSRN and advertise it on their blogs instead of seeking law journal placement.</p> <p>. . .</p> <p>I understand that untenured faculty still need the stamp of approval that comes with law journal acceptance. For those of us with tenure, though, what makes us continue to seek such acceptance?</p></blockquote> <p>Lawrence Solum <a href="http://lsolum.typepad.com/legaltheory/2008/06/kamin-asks-why.html">responds</a> at the Legal Theory Blog, suggesting that (1) SSRN is not focused on being a permanent repository, (2) the benefits of Westlaw &amp; LexisNexis searching vs. the &#8220;noise&#8221; of Google (I&#8217;m not sure I agree with this!), and (3) the certification function of law reviews.</p> <p>I think it comes partly too from a confusion amongst law professors (one of the few groups of academics without doctorates) that they need the prestige of journals in the same way scientists do. But a peer-reviewed scientific journal is in a different league than a student-managed law review. Nonetheless, we all pretend it&#8217;s close enough&#8230;</p> "“Universities should not be in the social justice business”" https://inpropriapersona.com/articles/universities-should-not-be-in-the-social-justice-business/ Wed, 11 Jun 2008 12:24:00 +0000 d7abff922b901e0b674940ed7672f537 <p>This is a quote from Stanley Fish in an editorial in the New York Times, entitled <a href="http://fish.blogs.nytimes.com/2008/06/08/politics-and-the-classroom-one-more-try/index.html">Think Again</a>. I highly recommend the discussion. It&#8217;s a well-reasoned and articulate argument for thinking over feeling in the classroom, for compartmentalization and intellectual passion for the material being taught. He counters the widespread postmodern argument that one cannot remove oneself ever and that objectivity is impossible:</p> <blockquote><p>The non-anecdotal argument for the it-can&#8217;t-be-done objection is philosophical. Teachers come to their task burdened by religious and political commitments, moral philosophies and world views, and they can&#8217;t simply unburden themselves when they walk into the classroom. &#8220;It is a fallacy to think that the &#8216;academic&#8217; world is or can be isolated from the political world.&#8221;</p> <p>But isolation from the political world is not required. All that is required is the quite ordinary ability to distinguish between contexts and the decorums appropriate to them. When you enter an institutional setting &#8212; an office, a corporate boardroom, a cruise ship, a square dance, an athletic event &#8212; the concerns to which you are responsive belong to the setting, and you comport yourself accordingly. Rather then asking, &#8220;What do my political and religious views tell me to do,&#8221; you ask, &#8220;What do the protocols of this particular endeavor or occasion tell me to do?&#8221;</p></blockquote> <p>I&#8217;m not sure I completely agree that it&#8217;s quite as easy as believes, but I do support the notion that, even if objectivity is impossible, and even if it makes sense to acknowledge one&#8217;s biases at times, that does not release a teacher from the duty to teach the material and not his or her beliefs. It may occasionally be a fine line (I hope not), but indoctrination does not belong in a classroom.</p> <p>David Bernstein at The Volokh Conspiracy <a href="http://volokh.com/posts/1213067951.shtml">echoes Fish&#8217;s statement</a>. He writes about Brandeis University:</p> <blockquote><p>I wish someone would explain this to those who run Brandeis University, my alma mater. &#8230; In short, Brandeis is, officially, in the social justice business. At best, this is just p.r. talk, and has no effect on academic freedom in the university, and is merely embarrassing. At worst, Brandeis in fact institutionally favors certain ideological views over others, and has no claim to be a university devoted to the pursuit of truth regardless of ideological implications.</p></blockquote> <p>I see some problems with this:</p> <ol> <li>Fish is actually making a more complex statement about <span style="font-style: italic;">teaching</span> than the simple statement above indicates.</li> <li>Fish&#8217;s quest for &#8220;teaching the text&#8221; might (arguably, as many would disagree that such a thing is quite as simple as he makes it seem) make sense in Fish&#8217;s discipline (literature), but may be somewhat more complex in a discipline more connected with current events (political science, law).</li> <li>Striving for &#8220;social justice&#8221; does not need to be the same thing as pushing a political agenda or even a particular approach. To argue otherwise suggests somehow that conservatives are uninterested in justice. I would argue that &#8220;social justice&#8221; could well be a very old, very traditional, and perhaps even conservative mission for a university.</li> <li>Perhaps we are, as in many arguments, actually differing only over the definition of &#8220;social justice&#8221;: is it ideologically tied to liberal ideology at the expense of academic freedom, or is it just a restatement of &#8220;with liberty and justice for all&#8221; in the (conservative-approved) Pledge of Allegiance? Perhaps we are caught up in semantics (and should read more of Fish&#8217;s academic works to get unstuck).</li> </ol> <p>Fish tackles a number of issues head on in a well-written and well-reasoned article. Summing it up in a single, categorical directive that &#8220;universities should not be in the social justice business&#8221; does it a disservice, I think. (The <a href="http://volokh.com/posts/1213067951.shtml#383044">comments</a> are worth reading.)</p> "New vs. Old Media" https://inpropriapersona.com/articles/new-vs-old-media/ Fri, 30 May 2008 12:51:00 +0000 3ef3168ac3ece5d54fe9dde4722aecde <p><a href="http://arstechnica.com/news.ars/post/20080529-revision3-ceo-blackout-caused-by-mediadefender-attack.html">Revision3 CEO: Blackout caused by MediaDefender attack &#8211; ars technica</a>:</p> <blockquote><p>Revision3, the Internet television network behind popular shows like Diggnation, experienced a serious network failure over Memorial Day weekend. CEO Jim Louderback revealed today that the outage was caused by a massive denial of service attack that he says was perpetrated by MediaDefender, a file-sharing mitigation firm that gets paid by Big Content to disrupt peer-to-peer networks.</p></blockquote> <p>Jim Louderback, the CEO of Revision3, <a href="http://web.archive.org/web/20130721014755/http://revision3.com/blog/2008/05/29/inside-the-attack-that-crippled-revision3/">discussing the denial of service attack</a>, writes:</p> <div> <blockquote><p>A bit of address translation, and we&#8217;d discovered our nemesis. But instead of some shadowy underground criminal syndicate, the packets were coming from right in our home state of California. In fact, we traced the vast majority of those packets to a public company called Artistdirect (ARTD.OB). Once we were able to get their internet provider on the line, they verified that yes, indeed, that internet address belonged to a subsidiary of Artist Direct, called MediaDefender.</p> <p>So I picked up the phone and tried to get in touch with ArtistDirect interim CEO Dimitri Villard. I eventually had a fascinating phone call with both Dimitri Villard and Ben Grodsky, Vice President of Operations at Media Defender.</p> <p>First, they willingly admitted to abusing Revision&#8217;s network, over a period of months, by injecting a broad array of torrents into our tracking server. They were able to do this because we configured the server to track hashes only &#8211; to improve performance and stability. That, in turn, opened up a back door which allowed their networking experts to exploit its capabilities for their own personal profit.</p> <p>Second, and here&#8217;s where the chain of events come into focus, although not the motive. We&#8217;d noticed some unauthorized use of our tracking server, and took steps to de-authorize torrents pointing to non-Revision3 files. That, as it turns out, was exactly the wrong thing to do. MediaDefender&#8217;s servers, at that point, initiated a flood of SYN packets attempting to reconnect to the files stored on our server. And that torrential cascade . . . brought down our network.</p> <p>Grodsky admits that his computers sent those SYN packets to Revision3, but claims that their servers were each only trying to contact us every three hours. Our own logs show upwards of 8,000 packets a second.</p></blockquote> <p>Mr. Louderback notes, &#8220;Denial of service attacks are illegal in the US under 12 different statutes, including the Economic Espionage Act and the Computer Fraud and Abuse Act.&#8221;</p> <p>While various defenses may exist, as they do for crimes similar to this (think self defense, defense of others, defense of property, etc. in regards to old-school assault, trespassing, or false imprisonment), such defenses tend to have fairly high standards, and often require that the victim actually have committed a crime (which is why a &#8220;citizen&#8217;s arrest&#8221; is risky, since it could quickly become a charge of false imprisonment against you if you&#8217;re wrong&#8230;).</p> <p>In short, we discourage vigilanteism and &#8220;self help,&#8221; believing instead that law &amp; order are best preserved when the state controls the process. MediaDefender&#8217;s proactive approach is disturbingly close to vigilantism at the best of times, and when they get it wrong (like this), one can see one clear reason why we discourage such approaches: innocents suffer, innovation suffers, innovating new business suffer&#8211;and, from a public-policy perspective, society suffers too. (As a counter-argument, however, consider bounty hunters and their cousins, those brave souls in the vehicle repossession business. They can get away with a lot, even if they make a mistake. Is that the model we want for copyright enforcement?</p> </div> "Viacom Ups Ante In YouTube Copyright Spat: Google More Than A Mere Enabler" https://inpropriapersona.com/articles/viacom-ups-ante-in-youtube-copyright-spat-google-more-than-a-mere-enabler/ Wed, 28 May 2008 02:54:00 +0000 267f53b877e9959d0711a195c3f8c99c <p><a href="http://www.washingtonpost.com/wp-dyn/content/article/2008/05/27/AR2008052702870.html">Viacom Ups Ante In YouTube Copyright Spat: Google More Than A Mere Enabler &#8211; washingtonpost.com</a></p> <blockquote><p><a href="http://www.ipdemocracy.com/archives/2008/05/27/">Cynthia Brumfeld</a> noticed that Viacom actually raised the stakes in a <a href="http://www.emediadynamics.com/downloads/viacomvyoutubeamendedcomplaint.pdf">recently</a> (.pdf) amended complaint from April. In addition to pointing out that YouTube hosts all kinds of copyrighted content, the company emphasizes that YouTube is guilty of public performance of such content due to the way it presents and plays the videos. The filing highlights YouTube&#8217;s embedding and sharing features as particularly problematic for the way it encourages infringement. Rather than just helping users violate copyright, it argues, YouTube is a direct infringer.</p></blockquote> <p>Of course they want to say this. The penalties are higher, for one thing! The DMCA (generally a bad law, but&#8230;) does seem to offer Google protection, so we&#8217;ll see. I must admit I&#8217;m generally more sympathetic to Google than YouTube, since the overall good of allowing creativity and sharing on YouTube outweighs possible harm (this might harken back to the old Sony Betamax case). And they do take content down when it&#8217;s reported to them, after all.</p> "Analysis of Same-Sex Marriage Opinion in California" https://inpropriapersona.com/news/2008/analysis-of-same-sex-marriage-opinion-in-california/ Mon, 19 May 2008 03:34:00 +0000 241c52a2ca4a633f23a71b6ebe241455 <p>&nbsp;</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Supremecourtofcaliforniamaincourthouse.jpg"><img class="zemanta-img-configured" title="The Earl Warren Building and Courthouse at Civ..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/3/30/Supremecourtofcaliforniamaincourthouse.jpg/300px-Supremecourtofcaliforniamaincourthouse.jpg" alt="The Earl Warren Building and Courthouse at Civ..." width="300" height="225" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://balkin.blogspot.com/2008/05/grading-california-same-sex-marriage.html">Balkinization &#8211; Grading the California same-sex marriage opinion</a>:</p> <blockquote><p>The California Supreme Court&#8217;s opinion is distressingly conclusory. It combines a tortured and probably unsalvageable substantive due process analysis with a strange, ultimately barely successful equal protection argument. If it is persuasive, it is barely so. Law professors are grumpy people who care less about whether you&#8217;ve argued the right side than about whether you&#8217;ve constructed your argument competently. I would give this opinion a barely passing grade.</p> <p>The court&#8217;s arguments are based on clauses of the California constitution that resemble the federal equal protection and due process clauses. But since the decision wasn&#8217;t interpreting the U.S. Constitution, it can&#8217;t be reviewed by the U.S. Supreme Court.</p></blockquote> <p>I liked the decision, but this close analysis looks at in a critical light, and brings some useful criticism to it (although agreeing with the final decision). The main point I drew was how much it relied on the 1948 California decision regarding inter-racial marriage.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"></div> "Defense Department Jettisons Charges Against ‘20th Hijacker’" https://inpropriapersona.com/news/2008/defense-department-jettisons-charges-against-20th-hijacker/ Wed, 14 May 2008 19:09:00 +0000 ba76848bc0a5f8631fed53afa5b2b9d2 <p><a href="http://blogs.wsj.com/law/2008/05/14/defense-department-jettisons-charges-against-20th-hijacker/">Law Blog &#8211; WSJ.com : Defense Department Jettisons Charges Against &#8217;20th Hijacker&#8217;</a>:</p> <blockquote><p>On the Gitmo front, the last several weeks have brought the Bush administration a series of legal defeats. First, Gitmo’s former chief prosecutor turned against the Pentagon, testifying that political interference had tainted the military commissions, set up to prosecute detainees. Then a key legal adviser to the war crimes system was barred from having any further role in the case of Salim Hamdan. The latest: The Defense Department has thrown out all charges against Mohammed al-Qahtani, one of the “Gitmo Six” and the alleged “20th hijacker” in the 9/11 attacks.</p></blockquote> <p>I am profoundly disturbed by everything at &#8220;Gitmo.&#8221; We have a Constitution and a justice system for a reason. Why don&#8217;t we use them and respect them? If we don&#8217;t, who will?</p> "Copyright’s Paradox: a book by Neil Netanel" https://inpropriapersona.com/articles/copyrights-paradox-a-book-by-neil-netanel/ Wed, 14 May 2008 01:36:00 +0000 d1cd064644f7d3860594a3b0fef89a5d <div>Neail Netanel <a href="http://volokh.com/posts/1210696688.shtml">writes on The Volokh Conspiracy</a>:</p> <blockquote><p><a href="http://www.amazon.com/gp/product/0195137620?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=9325&amp;creativeASIN=0195137620"><img src="http://ecx.images-amazon.com/images/I/41bWRMZE96L._SL160_.jpg" style="float:left;max-width:800px;margin:5px;" border="0" /></a>The paradox referenced in my <a href="http://www.amazon.com/gp/product/0195137620?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=9325&amp;creativeASIN=0195137620">book</a>&#8216;s title is that copyright serves both as an &#8220;engine of free expression&#8221; and silencer of free expression. Copyright law provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse. </p> <p>Yet copyright also burdens speech. We often copy or build upon another&#8217;s words, images, or music to convey our own ideas effectively. We can&#8217;t do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means. And copyright doesn&#8217;t extend merely to literal copying. It can also prevent parodying, remolding, critically dissecting, or incorporating portions of existing expression into a new, independently created work.</p> <p>Both sides of that equation are much more complicated than that simple description, as are the ways in which we might try to solve the paradox and what the First Amendment should, therefore, say about copyright law. (At least, I think they are much more complicated; that&#8217;s why I wrote a whole book about the copyright-free speech paradox!) </p> </blockquote> </div> "National Security Letters and the Internet Archive" https://inpropriapersona.com/articles/national-security-letters-and-the-internet-archive/ Fri, 09 May 2008 07:53:00 +0000 38057369bbd510e255b18c458fe73077 <p>Deven Desai <a href="http://www.concurringopinions.com/archives/2008/05/post_30.html">writes in Concurring Opinions</a>:</p> <blockquote><p><a href="http://blog.wired.com/27bstroke6/2008/05/internet-archiv.html">Wired reports</a> that the FBI subpoenaed the Internet Archive and demanded that Brewster Kahle (the Archive&#8217;s founder) provide records about one of the library&#8217;s registered users, asking for the user&#8217;s name, address and activity on the site. The FBI used a National Security Letter (<a href="http://www.aclu.org/pdfs/safefree/internetarchive_nslissued_20070119.pdf">example</a>) to make the request. As Wired explains this type of letter does not require judge&#8217;s review before issuing it and often (almost always) has a gag order &#8220;forbidding the recipient from ever speaking of the subpoena, except to a lawyer.&#8221; The Archive, EFF, and the ACLU went to court and had the subpoena quashed.</p> <p>As I argue in <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1101648">Property, Persona, and Preservation</a>, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a<br /> related issue of once preserved what can be done with the information.</p> <p>Here, the Archive is preserving the information and then as a library<br /> allowing people to use that information. But because of the method of<br /> access, the FBI was able to ask for great detail about who looked at<br /> what information and when. Julie Cohen&#8217;s <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=17990">A Right to Read Anonymously: A Closer Look at &#8220;Copyright Management&#8221; In Cyberspace</a> offers an explanation as to why the Archive&#8217;s win is so important. In short, reading anonymously involves identity of the reader and how we foster &#8220;freedom of thought and expression.&#8221;</p></blockquote> "Sprint, Clearwire and WiMax" https://inpropriapersona.com/articles/sprint-clearwire-and-wimax/ Wed, 07 May 2008 22:21:00 +0000 43871565e3022157a4d98155e1dbd270 <p>The <a href="http://www.nytimes.com/2008/05/07/technology/07sprint-web.html?partner=rssnyt&amp;emc=rss">New York Times writes</a>:</p> <blockquote> <p>A who&#8217;s who of technology and telecommunications companies announced<br /> Wednesday that it intended to build the first of a new generation of nationwide<br /> wireless data networks.</p> <p>The consortium includes a disparate group of partners: <a title="More information about Sprint Nextel Corporation" href="http://topics.nytimes.com/top/news/business/companies/sprint_nextel_corporation/index.html?inline=nyt-org">Sprint Nextel</a>, <a title="More information about Google Inc." href="http://topics.nytimes.com/top/news/business/companies/google_inc/index.html?inline=nyt-org">Google</a>, <a title="More information about Intel Corporation" href="http://topics.nytimes.com/top/news/business/companies/intel_corporation/index.html?inline=nyt-org">Intel</a>, <a title="More information about Comcast Corporation." href="http://topics.nytimes.com/top/news/business/companies/comcast_corporation/index.html?inline=nyt-org">Comcast</a>, <a title="More information about Time Warner Inc." href="http://topics.nytimes.com/top/news/business/companies/time_warner_inc/index.html?inline=nyt-org">Time Warner</a> and <a title="Clearwire" href="http://www.nytimes.com/mem/MWredirect.html?MW=http://custom.marketwatch.com/custom/nyt-com/html-companyprofile.asp&amp;symb=CLWR">Clearwire</a>. </p> <p>The partners have put the value of the deal at $14.5 billion, a figure<br /> that includes radio spectrum and equipment provided by Sprint Nextel and<br /> Clearwire, and $3.2 billion from the others involved.</p> </blockquote> <p><a href="http://www.news.com/8301-10784_3-9938468-7.html?tag=nefd.lede">CNet News.com writes</a>:</p> <blockquote> <p>In many ways the new venture is a win-win situation for Sprint and Clearwire,<br /> which, if truth be told, had no other option than to team up. Sprint, which has<br /> steadily been losing customers after its failed 2005 merger with Nextel, gets to<br /> shed an expensive and resource sucking venture. And Clearwire, which hasn&#8217;t been<br /> profitable since it went public a year ago, gets more spectrum assets and<br /> capital to build the network. Wall Street had been getting fed up with each<br /> company, so a deal to merge the entities was a no-brainer. </p> <p>But as someone who has watched big technology mergers form and unwind over the past decade, I&#8217;m not convinced that the new Clearwire will actually make it in the<br /> end. That said, I think at the very least the new company will spur quicker innovation of broadband wireless technology and force operators like AT&amp;T<br /> and Verizon Wireless to deploy their own networks more quickly. In this respect,<br /> consumers will likely have Sprint and Clearwire to thank for helping bring true<br /> wireless broadband services to a plethora of consumer electronics devices. </p> <p>But the big question yet to be answered is whether the new Clearwire will be the company delivering that network and whether WiMax, its technology of<br /> choice, will be used to do it. </p> </blockquote> <p>I&#8217;m sure we&#8217;ll see more of this soon. I like the idea of WiMax (2 mile range!), but I do wonder about two issues: (1) can a company make money nationally on this? and (2) let&#8217;s see some more competition around a single standard!</p> "Judge Posner Skewers Textualism-Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives" https://inpropriapersona.com/articles/judge-posner-skewers-textualism-originalism-thomas-scalia-and-reveals-the-increasing-politicization-of-judging-by-conservatives/ Wed, 07 May 2008 18:40:00 +0000 e76baa6bc286568ae41ab75a3eec702e <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 216px" class="wp-caption alignright"><a href="http://www.amazon.com/Judges-Think-Honorable-Richard-Posner/dp/0674028201%3FSubscriptionId%3D0G81C5DAZ03ZR9WH9X82%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0674028201"><img title="Cover of &quot;How Judges Think&quot;" src="http://ecx.images-amazon.com/images/I/41ZMp8U%2B5qL._SL300_.jpg" alt="Cover of &quot;How Judges Think&quot;" width="216" height="300" /></a><figcaption class="wp-caption-text">Cover of How Judges Think</figcaption></figure> </div> <p><a href="http://balkin.blogspot.com/2008/05/judge-posner-skewers-textualism.html">Judge Posner Skewers Textualism-Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives</a> from Brian Tamanaha at <a href="http://balkin.blogspot.com/">Balkinization</a>, quoting from Judge Posner&#8217;s new book, <a href="http://www.amazon.com/gp/product/0674028201?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=9325&amp;creativeASIN=0674028201">How Judges Think</a><img style="border: medium none!important; display: none; margin: 0!important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=0674028201" alt="" width="0" height="0" border="0" />:</p> <blockquote><p>This politically conservative response (&#8220;originalism&#8221; or &#8220;textualism-originalism&#8221;) &#8212; which under different conditions could be a liberal response but is more congenial to conservatives because of its evocation of an era more culturally conservative than today &#8212; illustrates a more general tendency of judges to reach backward for the grounds of their decision. By doing so they can if challenged claim to be employing a different methodology that involves deriving conclusions from premises by logical operations as distinct from basing action on a comparison of the social or political consequences of different possible outcomes. But the backward orientation actually enlarges a judge&#8217;s legislative scope, and not only by concealing that he is legislating. A judge or Justice who is out of step with current precedents reaches back to some earlier body of case law (or constitutional text) that he can describe as the bedrock, the authentic Ur text that should guide decision. And the older the bedrock, the greater the scope for manipulation of meaning in the name of historical reconstruction or intellectual archeology . &#8230;</p></blockquote> <p>For more on Judge Posner, see:</p> <ul> <li><a href="http://en.wikipedia.org/wiki/Richard_Posner">Richard Posner</a> on Wikipedia</li> <li><a href="http://www.becker-posner-blog.com/">The Becker-Posner Blog</a></li> <li><a href="http://books.google.com/books?ct=title&amp;q=inauthor%3APosner+inauthor%3ARichard&amp;btnG=Search+Books">Other books</a> from Google Books</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=bfa0d907-c24d-4e60-98e9-253048d4287e" alt="" /></div> "F.B.I. Raids Office of Special Counsel - New York Times" https://inpropriapersona.com/news/2008/f-b-i-raids-office-of-special-counsel-new-york-times/ Tue, 06 May 2008 21:46:00 +0000 dd93edee40c48e1d32371946a0cb1fe4 <p><a href="http://www.nytimes.com/2008/05/07/washington/06cnd-inquire.html?partner=rssnyt&amp;emc=rss">F.B.I. Raids Office of Special Counsel &#8211; New York Times</a>:</p> <blockquote><p>The office of the official responsible for protecting federal workers from political interference was raided by F.B.I. agents on Tuesday as part of an investigation into whether he himself mixed politics with official business.</p> <p>The raid took place at the office of Scott J. Bloch, the head of the <a href="http://www.osc.gov/">Office of Special Counsel</a>. Computers and documents were seized by agents trying to determine whether Mr. Bloch obstructed justice by hiring an outside company to &#8220;scrub&#8221; his computer files, the Associated Press reported. Investigators also searched Mr. Bloch&#8217;s home in suburban Virginia after obtaining a subpoena.</p></blockquote> <p>The White House &#8220;<a href="http://www.osc.gov/">Office of Special Counsel</a>&#8221; is supposed to investigate direct political influence in government activities, something made illegal by the <a href="http://en.wikipedia.org/wiki/Hatch_Act_of_1939">Hatch Act</a>. It seems these raids were specifically initiated by suspicion that Mr. Bloch &#8220;mixed politics with official business,&#8221; and then tried to cover it up.</p> <p>I suppose it&#8217;s good that one part of the executive (the F.B.I.) feels it can investigate another (the Office of Special Counsel), but whatever happens, allowing such situations to develop in the first place increases the perception of mismanagement and reduces public confidence. I wonder who he knew to get himself appointment in the first place? (Or is that too cynical a view?)</p> "When Law Prevents Righting a Wrong" https://inpropriapersona.com/articles/when-law-prevents-righting-a-wrong/ Mon, 05 May 2008 18:59:00 +0000 1108d957f2b8cfc1ae06c6a3fa356f1b <p>From an <a href="http://www.nytimes.com/2008/05/04/weekinreview/04liptak.html?ex=1367553600&amp;en=76ee3ebfa3cf9082&amp;ei=5124&amp;partner=permalink&amp;exprod=permalink">an article in the New York Times</a>:</p> <blockquote><p>A lawyer&#8217;s broad duty to keep clients&#8217; confidences is the bedrock on which the justice system is built, [many legal experts] argue. If clients did not feel free to speak candidly, their lawyers could not represent them effectively. And making exceptions risks eroding the trust between clients and their lawyers in future cases. Experts in legal ethics are quick to point out that the various players in the adversary system have assigned roles and that lawyers generally must tend to a limited one.</p> <p>&#8220;Lawyers are not undercover informants,&#8221; said Stephen Gillers, who teaches legal ethics at New York University. Indeed, said Steven Lubet, who teaches legal ethics at Northwestern, few clients would confess to their lawyers if they knew the lawyers might some day choose to disclose that information.</p> <p>. . .</p> <p>Most experts in legal ethics agree that lawyers should be allowed to violate a living client&#8217;s confidences to save an innocent man from execution, but not to free someone serving a prison term, however long.</p> <p>&#8220;I prefer to draw the line at the life-and-death situation,&#8221; said Monroe Freedman, who teaches legal ethics at Hofstra. &#8220;That situation is sufficiently rare that is doesn&#8217;t present a systemic threat. If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.&#8221;</p></blockquote> <p>For more, read the <a href="http://volokh.com/posts/1209998558.shtml">discussion at The Volokh Conspiracy</a>.</p> "Web-based Classroom Tools" https://inpropriapersona.com/articles/web-based-classroom-tools/ Mon, 05 May 2008 02:02:00 +0000 b6f499ec1a98c59e00b9bb272f77a241 <p>From <a href="http://www.makeuseof.com/">MakeUseOf.com</a> by David Johannes:</p> <blockquote><p>Online collaboration between schools, teachers, and students has become increasingly apparent as our everyday routines become more and more connected via the internet. Of course, there are paid solutions that satisfy this need through Learning Management Systems, such as <a href="http://www.blackboard.com/products/Academic_Suite/index" target="_blank">Blackboard Academic Suite</a>, which frankly isn&#8217;t very good at all in my opinion. I can&#8217;t even count the number of times both teachers and students have complained about paid services that their respective institutions utilize. Well, now comes <a href="http://www.studeous.com/">Studeous</a>, a free (and better) alternative that allows for online collaboration in the world of academics.</p></blockquote> <p>The legal academic world has <a href="http://lawschool.westlaw.com/twen/">TWEN</a> (from the folks that bring you <a href="http://www.westlaw.com/">Westlaw</a>). Yawn. It works, but that&#8217;s about all anyone can say about it. I suppose it&#8217;s pretty much free to the institutions, since the real point of academic Westlaw subscriptions is to hook students on the (expensive) service so that when they enter a firm, they have a commitment to paying for Westlaw (vs. the competition, i.e., <a href="http://www.lexisnexis.com/">LexisNexis</a>).</p> "Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks" https://inpropriapersona.com/articles/open-source-open-access-and-open-transfer-market-approaches-to-research-bottlenecks/ Wed, 30 Apr 2008 21:47:00 +0000 5ea72e1f217309d551a6d15a79185b09 <p>&nbsp;</p> <div class="zemanta-img zemanta-action-dragged" style="margin: 1em; display: block;"> <figure style="max-width: 207px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/41596622@N00/5777588273"><img title="First page of a journal article" src="http://farm4.static.flickr.com/3637/5777588273_a3a0bd94ed_m.jpg" alt="First page of a journal article" width="207" height="240" /></a><figcaption class="wp-caption-text">Image by krisnelson via Flickr</figcaption></figure> </div> <p><a href="http://www.law.northwestern.edu/journals/njtip/v7/n1/2/"></a>The <a href="http://www.law.northwestern.edu/njtip/">Northwestern Journal of Technology and Intellectual Property</a> has accepted a paper I co-authored with <a href="http://www.robinfeldman.com/">Professor Robin Feldman</a> of <a href="http://www.uchastings.edu/">UC Hastings School of Law</a>. The name of the piece is <a href="http://ssrn.com/abstract=1127571">Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks</a>. It should appear in full published form before the end of 2008.</p> <p>The piece deals with so-called &#8220;patent thickets&#8221; and the extent such bottlenecks may be impacting research, especially in the field of biotechnology. Whether they really exist or not may be immaterial, as several approaches have nevertheless appeared to deal with their potential to restrict research. The piece looks calls three current approaches: &#8220;open source,&#8221; &#8220;open access,&#8221; and &#8220;open transfer,&#8221; and looks at the ways in which these approaches are used to deal with potential &#8220;thickets,&#8221; and, indirectly, to thus see their possible scope.</p> <p>Much of this is based on Professor Feldman&#8217;s extensive intellectual property and patent work, some of which, at least, is <a href="http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=179362">openly available through SSRN</a>.</p> <p>UPDATE: <a href="http://ssrn.com/abstract=1127571">Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks</a> is now available on <a href="http://www.ssrn.com">SSRN</a>. The article is <a href="http://www.law.northwestern.edu/journals/njtip/v7/n1/2/">also available</a> on the Northwestern Journal of Technology and Intellectual Property.</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=c6b81edf-c217-47c8-80e1-a57f34e9d0c3" alt="" /></div> "The Candidates on Disability" https://inpropriapersona.com/news/2008/the-candidates-on-disability/ Wed, 23 Apr 2008 21:33:00 +0000 48e6014018b6a630469d814a94100b32 <p><a href="http://www.concurringopinions.com/archives/2008/04/the_candidates.html">Concurring Opinions &#8211; The Candidates on Disability</a>:</p> <blockquote><p>Having criticized the mainstream media for failing to discuss substantive policy issues in the presidential election, I should commend coverage that actually explores what the candidates will do. Michael Berube&#8217;s analysis of the disability policies of Obama/Clinton/McCain appears here (and here).</p></blockquote> "More Free and Open Source Law Resources" https://inpropriapersona.com/articles/more-free-and-open-source-law-resources/ Thu, 20 Mar 2008 02:46:00 +0000 cc06bf1f2733cf5fa365ab0cf513a7bf <p><a href="http://www.concurringopinions.com/archives/2008/03/more_free_and_o.html">Concurring Opinions &#8211; More Free and Open Source Law Resources</a>:</p> <blockquote><p>Law.com has a <a href="http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1205775583290">good summary</a> of the way projects seeking to make opinions, statutes, and other legal materials free. The history of these efforts goes back to the early 90s, but the recent changes may the ones to threaten the big shots. According to the article <a href="http://public.resource.org/">Public Resource</a> now offers &#8220;virtually all of the Federal Reporter second and third series, said to be the equivalent of 1,858 volumes of case law.&#8221; The link to the courts resource seems broken (kept displaying directory page) but assuming it will work just as the other services on Public.Resource do (Smithsonian, House of Representatives, and Dept. of Commerce are covered by the group as well), that will be a big step in offering open access to the law.</p></blockquote> "Blood Test for African Sleeping Sickness" https://inpropriapersona.com/articles/blood-test-for-african-sleeping-sickness/ Wed, 05 Mar 2008 01:18:00 +0000 16ee7eeb7364dcf046409b247ec79f4c <p><img class="alignright" title="&quot;PLoS: The Public Library of Science&quot; by Flickr user dullhunk, used under a Creative Commons Attribution 2.0 license" src="http://farm4.static.flickr.com/3552/3928195989_d1ee018e86_m.jpg" alt="" width="240" height="240" /><a href="http://web.archive.org/web/20080915163206/http://blog.wired.com:80/wiredscience/2008/03/third-world-bio.html">Wired &#8211; Third World Biotech: Blood Test for African Sleeping Sickness</a>:</p> <blockquote><p>Australian scientists have <a href="http://dx.doi.org/10.1371/journal.pntd.0000147">developed a blood test</a> for African sleeping sickness that does not require the fancy equipment found in upscale medical labs. Even better, they made the details of their work available for free by publishing a paper in the Feb. 6 issue of PLoS Neglected Tropical Diseases, which operates under a Creative Commons license.</p></blockquote> <p>An intriguing example of the sort of open-source or open-access research I&#8217;ve been looking into recently.</p> <p>For those with a scientific bent, here&#8217;s a summary of the <a href="http://www.plosntds.org/article/info%3Adoi%2F10.1371%2Fjournal.pntd.0000147">article </a>(&#8220;Loop-Mediated Isothermal Amplification (LAMP) Method for Rapid Detection of <span style="font-style: italic;">Trypanosoma brucei rhodesiense</span>&#8220;) from the authors:</p> <blockquote><p>Control of human African trypanosomiasis (HAT) or sleeping sickness relies on diagnosis and treatment of infected patients. However, the diagnostic tests in routine use have limited sensitivity, due to a characteristically low parasitaemia in infected individuals. Differentiation of infections by Trypanosoma brucei rhodesiense (causes acute disease) and T. b. gambiense (causes chronic disease) is essential, as the two forms of disease have different treatment regimens. In the present work, loop-mediated isothermal amplification (LAMP) of DNA was successfully used to detect T. b. rhodesiense, with a sensitivity of up to one trypanosome/ml of blood. The LAMP test was efficient and robust, and results were obtained within 35 min. Amplification was possible when a water bath was used to maintain the temperature at isothermal conditions (60–65°C), and results could be read by visual observation of colour change. These findings have increased the prospects for developing a simple molecular test for HAT that can be used with limited equipment at point of care in endemic rural areas.</p></blockquote> "Canada judge rules emergency wiretap law unconstitutional" https://inpropriapersona.com/articles/canada-judge-rules-emergency-wiretap-law-unconstitutional/ Tue, 04 Mar 2008 23:53:00 +0000 ecd900e085e120f26927426a5d921cc2 <p><a href="http://www.flickr.com/photos/rjproduct/3897512949/"><img class="alignright" title="&quot;Maple Leaf&quot; by Flickr user Product of Newfoundland, used under a Creative Commons Attribution-Noncommercial-Share Alike 2.0" src="http://farm3.static.flickr.com/2452/3897512949_fabf4261c8_m.jpg" alt="Maple Leaf" width="240" height="120" /></a> <a href="http://web.archive.org/web/20110115073537/http://jurist.law.pitt.edu/paperchase/2008/02/canada-judge-rules-emergency-wiretap.php">JURIST &#8211; Paper Chase: Canada judge rules emergency wiretap law unconstitutional</a>:</p> <blockquote><p>British Columbia Supreme Court Justice Barry Davies has ruled that Section 184.4 of the Canadian Criminal Code, which allows law enforcement officers to electronically intercept private communications in &#8216;exceptional circumstances&#8217; without court authorization, is unconstitutional because it violates &#8216;the fundamental freedom to be free from unreasonable search and seizure&#8217; protected by the Canadian Charter of Rights and Freedoms. Davies&#8217; ruling, made public Monday, can be appealed to the province&#8217;s Court of Appeal. Section 184.4 allows police to intercept communications without a judge&#8217;s approval in certain emergency situations, but Davies said that the provision violates the rights of people whose communications have been intercepted.</p></blockquote> <p>Interesting. I didn&#8217;t see this until today.</p> <p><span style="font-style: italic;">Update: Note that in July of 2008, after the above ruling, an Ontario judge ruled the same wiretap statute listed above was constitutional. See <a href="http://www.thestar.com/News/GTA/article/466391">Ontario judge gives nod to unapproved wiretaps</a> from the Toronto Star. Thus, the legal status of the law in Canada is still unsettled on this area of law as of July 2008.</span></p> "Australian judge on privacy: Computer code trumps the law" https://inpropriapersona.com/articles/judge-on-privacy-computer-code-trumps-the-law-cnet-news-com/ Fri, 29 Feb 2008 00:05:00 +0000 7f5c9d12c8b4af223c9cdb3567ece8b8 <p><a href="http://www.news.com/Judge-on-privacy-Computer-code-trumps-the-law/2100-1029_3-6231713.html?tag=ne.fd.mnbc">CNET News.com: Judge on privacy: Computer code trumps the law</a>:</p> <blockquote><p>Australian High Court Judge Justice Kirby says computer code is more potent than the law&#8211;and that legislators are powerless to do anything about it.</p> <p>Technology has outpaced the legal system&#8217;s ability to regulate its use in matters of privacy and fair use rights, said Kirby, speaking Thursday night at an Internet Industry Association (IIA) event.</p> <p>Kirby said the judicial system has faced difficulties in coping with changes the Internet and computing have brought.</p></blockquote> "When you die, become an intellectual property donor." https://inpropriapersona.com/articles/when-you-die-become-an-intellectual-property-donor/ Wed, 27 Feb 2008 19:04:00 +0000 7e9d2addc99f1590364c7a62b28b7278 <p><a href="http://www.kottke.org/remainder/08/02/15133.html">kottke.org: When you die, become an intellectual property donor.</a>:</p> <blockquote><p>Why let all of your ideas die with you? Current Copyright law prevents anyone from building upon your creativity for 70 years after your death. Live on in collaboration with others. Make an intellectual property donation. By donating your IP into the public domain you will &#8220;promote the progress of science and useful arts&#8221; (U.S. Constitution). Ensure that your creativity will live on after you are gone, make a donation today.</p></blockquote> "High Court Says No to Wiretapping, Yes to Exclusionary Rule" https://inpropriapersona.com/articles/high-court-says-no-to-wiretapping-yes-to-exclusionary-rule/ Wed, 20 Feb 2008 23:31:00 +0000 41e106e047bcd4c3b9c620fc59d76168 <p><a href="http://blogs.wsj.com/law/2008/02/20/high-court-says-no-to-wiretapping-yes-to-exclusionary-rule/">WSJ.com &#8211; High Court Says No to Wiretapping, Yes to Exclusionary Rule</a>:</p> <blockquote><p>Yesterday, the Supreme Court granted cert in a case that, commentators say, gives them an opporunity to carve out more exceptions to the &#8220;exclusionary rule,&#8221; a criminal procedure doctrine that excludes evidence obtained from an unlawful search. At the same time, the Court, without comment, turned down an appeal from the ACLU that challenged the Bush administration&#8217;s warrantless-wiretapping program.</p></blockquote> "Freeing America’s Operating System" https://inpropriapersona.com/articles/freeing-americas-operating-system/ Sat, 16 Feb 2008 03:37:00 +0000 5efa306beeaa1fbbdeb4e01cf9f1b859 <p><a href="http://creativecommons.org/weblog/entry/8039">Creative Commons &#8211; Freeing America’s Operating System</a>: </p> <blockquote><p>Last November Carl Malamud&#8217;s Public.Resource.Org announced an initiative to free 1.8 million pages of U.S. case law, publishing them online with no restrictions on reuse.</p> <p>Today the results of this initiative are available at <a href="http://bulk.resource.org/courts.gov/">http://bulk.resource.org/courts.gov/</a>.</p></blockquote> <p><img style="float:left;cursor:hand;width:200px;margin:0 10px 10px 0;" src="http://public.resource.org/files/peekaboo.seal.png" border="0" alt="" />From the <a href="http://bulk.resource.org/courts.gov/0_Press_20080211.pdf">press release</a> (pdf):</p> <blockquote><p>Today’s release covers all U.S. Supreme Court decisions and all Courts of Appeals decisions from 1950 on. The release is equivalent to 1,858 volumes of case law in book form, a stack of books 348 feet tall.</p></blockquote> <p>Also from the press release, David Boies says:</p> <blockquote><p>Practical access for all Americans to legal cases and material is essential to the rule of law.  The Legal Commons is an important step in reducing the barriers to effective representation of average citizens and public interest advocates.</p></blockquote> <p>Developers and resource providers are already picking up on this:</p> <blockquote><p>The cases made available to developers today will be used throughout the Internet. For example, the AltLaw service from Columbia and Colorado Law Schools has announced they will incorporate the information in their free service. Creative Commons and Public.Resource.Org are donating a copy of the data to the U.S. Courts and the Government Printing Office for their archives. A number of commercial legal research providservices. </p></blockquote> <p>Interesting developments in the legal research world! I just <a href="https://inpropriapersona.com/2008/02/public-library-of-law.html">commented</a> on the new &#8220;<a href="http://www.plol.org/Pages/Search.aspx">Public Library of Law</a>&#8221; that&#8217;s doing something similar. And just to reiterate, the &#8220;gold standards&#8221; of legal research in the U.S. are Westlaw and LexisNexis, and both services are <em>very</em> expensive. More competition is a good thing, and an even better thing is to have free open/public access to legal information.</p> "Danish Pirate Bay Block Breaks EU Law" https://inpropriapersona.com/articles/danish-pirate-bay-block-breaks-eu-law/ Fri, 15 Feb 2008 19:23:00 +0000 6bfc42c90444a9762e95a99f8fcba15c <p><a href="http://torrentfreak.com/danish-pirate-bay-block-breaks-eu-law-080213/">TorrentFreak &#8211; Danish Pirate Bay Block Breaks EU Law</a></p> <blockquote><p>A crucial factor in the ruling is thus that the ISP commits copyright infringement <span style="font-style: italic;">in their routers</span> when they allow access to The Pirate Bay. An absurd claim of course, and even more serious, it opposes the <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF">Infosoc Directive</a>, that formed the basis of the Danish copyright law.</p> <p>In in Article 5 of the Infosoc Directive it is <a href="http://swartz.typepad.com/texplorer/2008/02/denmark-and-pir.html">clearly stated</a> that &#8220;copying in routers&#8221; is allowed, as an exception to and a limitation of the rights holders&#8217; exclusive rights. Even more so, this is non-negotiable, and every member state of the EU must accept it. Oscar Swartz, an Internet pioneer and writer in Sweden who has been researching the case extensively rightly argues that the Danish court <a href="http://swartz.typepad.com/texplorer/2008/02/denmark-and-pir.html">misinterpreted</a> the Directive in this case.</p> <p>The misuse of the article in question has been confirmed by Cecilia Renfors, a Swedish judge and special governmental investigator who had the assignment to propose new legislation to combat unauthorized file-sharing. &#8220;She refers to the former opinion by the Swedish government and reconfirms that a Danish model would NOT be compatible with Article 5.1 in the Infosoc Directive. She also repeats the opinion that the Danish way actually nullifies the whole purpose of that Article,&#8221; Oscar writes.</p></blockquote> "Comcast Pledges To Keep Traffic Filters Active" https://inpropriapersona.com/articles/comcast-pledges-to-keep-traffic-filters-active/ Fri, 15 Feb 2008 19:14:00 +0000 5ae6bb8845362bc5150a2acb30123340 <p><a href="http://www.comcast.com/images/logo.gif"><img style="float:left;cursor:hand;width:200px;margin:0 10px 10px 0;" src="http://www.comcast.com/images/logo.gif" border="0" alt="" /></a><br /> <a href="http://mashable.com/2008/02/13/comcast-traffic-filters/">Comcast Pledges To Keep Traffic Filters Active</a>:</p> <blockquote><p>Comcast, in a reverse effort to Verizon’s well-received neutrality plea, has now stated for the record that it will keep filters active as long as music and video sharing continues to occur within its “tube” complex, <a href="http://web.archive.org/web/20091010030633/http://www.webpronews.com:80/topnews/2008/02/13/comcast-stands-by-its-internet-filtering">reports Mike Sachoff of WebProNews</a> today. Indeed, though Comcast for a long while had not gone so far as to promise to keep network-wide activity as clean as possible, the company has now come out onto the proverbial ledge to dub itself a firm supporter of data filters.</p></blockquote> <p>This kind of talk always worries me, although on a technical level, traffic shaping makes sense (I do it myself at home).</p> "The Public Library of Law" https://inpropriapersona.com/articles/the-public-library-of-law/ Fri, 15 Feb 2008 09:19:00 +0000 daace2ce913aa191e5e24b6f6c668bd1 <p><a href="http://www.plol.org/Images/Logo.gif"><img style="float: left; cursor: hand; width: 200px; margin: 0 10px 10px 0;" src="http://www.plol.org/Images/Logo.gif" border="0" alt="" /></a><br /> <a href="http://www.plol.org/Pages/Search.aspx">The Public Library of Law</a>:</p> <blockquote><p><span style="font-weight: bold;">What is the Public Library of Law?<br /> </span><br /> <span style="font-weight: bold;">Searching the Web is easy. Why should searching the law be any different?</span> That&#8217;s why Fastcase has created the Public Library of Law &#8212; to make it easy to find the law online. PLoL is the largest free law library in the world, because we assemble law available for free scattered across many different sites &#8212; all in one place. PLoL is the best starting place to find law on the Web.</p></blockquote> <blockquote><p><span style="font-weight: bold;">What is available on PLoL?<br /> </span></p> <ul> <li>Cases from the U.S. Supreme Court and Courts of Appeals</li> <li>Cases from all 50 states back to 1997</li> <li>Federal statutory law and codes from all 50 states</li> <li>Regulations, court rules, constitutions, and more!</li> </ul> </blockquote> <p>This is an intriguing new research tool that I just discovered today. While I do most of my research on Westlaw and LexisNexis (since it&#8217;s free to students), I&#8217;m very interested by the idea of much less expensive (or free!) tools. Two reasons for this interest: (1) increasing public access to the law and (2) saving myself or my firm/corp/non-profit/agency money in the future (Westlaw/LexisNexis are <em>very</em> expensive).</p> <p>Search for yourself at: <a href="http://www.plol.org/">http://www.plol.org/</a></p> "Starbucks ditches T-Mobile for AT&T" https://inpropriapersona.com/articles/starbucks-ditches-t-mobile-for-att/ Wed, 13 Feb 2008 01:31:00 +0000 4eaa909410a8fa7a5f6eadabc55bd9e1 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 210px;"> <dt class="wp-caption-dt"><a href="http://en.wikipedia.org/wiki/Image:Starbucks_Coffee_Logo.svg"><img title="Starbucks logo" src="http://upload.wikimedia.org/wikipedia/en/thumb/3/35/Starbucks_Coffee_Logo.svg/200px-Starbucks_Coffee_Logo.svg.png" alt="Starbucks logo" width="200" height="200" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://en.wikipedia.org/wiki/Image:Starbucks_Coffee_Logo.svg">Wikipedia</a></dd> </dl> </div> </div> <p><a href="http://www.webware.com/8301-1_109-9868964-2.html">Webware &#8211; Starbucks ditches T-Mobile for AT&amp;T</a>:</p> <blockquote><p>Ubiquitous caffeine conglomerate Starbucks has ended its Wi-Fi partnership with T-Mobile in favor of one with AT&amp;T.</p> <p>Under the earlier plan with T-Mobile, Starbucks customers needed a paid subscription to access the in-store Wi-Fi service, and T-Mobile HotSpot subscribers will continue to have access to Starbucks Wi-Fi thanks to an agreement between AT&amp;T and T-Mobile. But the new AT&amp;T plan allows all customers 2 free hours per day, with a $3.99 fee for additional 2-hour chunks of time. Monthly subscriptions will cost $19.99 and will enable access to other AT&amp;T hot-spot locations in addition to Starbucks.</p></blockquote> <p>It&#8217;s about @*#&amp;^!$ time! Finally, customers get some amount of wireless access without paying through the nose.</p> <p>This may actually make me go to Starbucks again on occasion &#8212; at least I can check my email with my predictably boring coffee.</p> <p>Some more details, from <a href="http://wifinetnews.com/archives/008175.html">Wi-Fi Networking News</a>:</p> <blockquote><p>AT&amp;T says in their <a href="http://www.att.com/gen/press-room?pid=4800&amp;cdvn=news&amp;newsarticleid=25152">press release</a> that all <a href="https://www.starbucks.com/card/default.asp?cookie%5Ftest=1">Starbucks Card</a> holders, which is simply their value-storing swipe card system, will get two hours of free Wi-Fi a day. No purchase is needed: you just need an active card, I confirmed with the company. Walk in, buy a $5 value card, activate it, and you&#8217;re on for two hours a day from then forward. You can also use multiple devices with a single account, within reason, Starbucks told me. AT&amp;T has also lowered the price for usage from <a href="http://hotspot.t-mobile.com/services_plans.htm">T-Mobile&#8217;s somewhat egregious $6 per hour</a> or $10 per day to $4 for a two-hour session. The monthly price, like the rest of AT&amp;&#8217;s network, is $20 per month for outsiders, which also includes all 70,000 domestic and international locations in their worldwide roaming network.</p></blockquote> "Bush Administration Spending More Taxpayer Money On Intellectual Property Prosecutions" https://inpropriapersona.com/articles/bush-administration-spending-more-taxpayer-money-on-intellectual-property-prosecutions/ Wed, 13 Feb 2008 00:03:00 +0000 29648114ce4469afdedd6d30d522358f <p><a href="http://techdirt.com/articles/20080211/224115235.shtml">Techdirt &#8211; Bush Administration Spending More Taxpayer Money On Intellectual Property Prosecutions</a>:</p> <blockquote><p>Back when former Attorney General Alberto Gonzales was running around pushing for <a href="http://www.techdirt.com/articles/20070514/171831.shtml">stricter</a> copyright laws, including making <a href="http://www.techdirt.com/articles/20070628/162955.shtml">&#8220;attempted infringement&#8221;</a> a crime, we figured that he was just looking for some sort of distraction from the Congressional investigation concerning some of his other actions in office. However, it appears that <a href="http://www.techdirt.com/articles/20070614/184123.shtml">pressure</a> from the entertainment industry has actually been effective in turning the Justice Department into the personal enforcement agency of Hollywood. The Bush Administration is proudly talking up how <a href="http://www.news.com/8301-10784_3-9869492-7.html?part=rss&amp;subj=news&amp;tag=2547-1_3-0-20">the Justice Department has increased its investigation and prosecution of intellectual property violations</a>. Considering that this is mostly a business model issue, and given the current state of the economy (not to mention the war we&#8217;re still involved in), aren&#8217;t there somewhat more important things for the administration to be focused on?</p></blockquote> "Law Reviews Get a Bad Review" https://inpropriapersona.com/articles/law-reviews-get-a-bad-review/ Tue, 12 Feb 2008 06:16:00 +0000 6667ad3634f55e2f7997799d0b5dccc9 <p><a href="http://blogs.wsj.com/law/2008/02/11/law-reviews-get-a-bad-review/">Law Blog &#8211; WSJ.com &#8211; Law Reviews Get a Bad Review</a>:</p> <blockquote><p>The institution of law reviews has always been a great source of puzzlement to the Law Blog. As a 2L, the sunny afternoons we labored away blue-booking articles were—we&#8217;re pretty certain—among the most ill-spent hours of our law-school career. And yet we can&#8217;t deny the symbolic importance of law-review membership. Just look at the on-campus interview guide of any non-tier-one law school. Many employers are clear: No law review? No thanks.</p></blockquote> <p>I would comment, but I have to get back to blue-booking for my journal.</p> "To bug or not to bug?" https://inpropriapersona.com/articles/to-bug-or-not-to-bug/ Thu, 07 Feb 2008 19:41:00 +0000 50d5d6239a6488278e7035dd51e3a275 <p><a href="http://business.timesonline.co.uk/tol/business/law/columnists/article3326812.ece"> Times Online &#8211; </a><a href="http://business.timesonline.co.uk/tol/business/law/columnists/article3326812.ece">To bug or not to bug?</a>:</p> <blockquote><p>Fury and outrage – but not surprise – were the emotions expressed by most criminal lawyers this week to the disclosure in The Times that a solicitor’s conversation with his client, a prisoner serving life, had been bugged by the police.</p></blockquote> <blockquote><p> The UK is almost alone in having no judicial authorisation of surveillance activity. If this evidence is now to be used in court, then it is time, say groups such as Liberty and Justice, to remove the police and politicians from this task and hand it to the judges.</p></blockquote> <p>So, will the UK finally find a way to allow wiretap evidence into court, instead of leaving it the security services alone to use/abuse such techniques?</p> <p>See also:</p> <ul> <li><a href="http://web.archive.org/web/20130512164013/http://jurist.law.pitt.edu/paperchase/2006/12/uk-home-office-considers-special.php">UK Home Office considers special judges to oversee terrorism wiretap cases </a></li> <li><a href="http://web.archive.org/web/20110312075108/http://jurist.law.pitt.edu/paperchase/2008/02/uk-pm-backs-admitting-wiretap-evidence.php">UK PM backs admitting wiretap evidence at trial</a></li> <li><a href="http://news.bbc.co.uk/2/hi/uk_news/politics/7229200.stm">Brown backs court phone tap use</a> </li> </ul> "Lords refuse to continue hearing case against Simon Mann" https://inpropriapersona.com/news/2008/lords-refuse-to-continue-hearing-case-against-simon-mann/ Thu, 07 Feb 2008 19:37:00 +0000 d4e2ca47909e13669003e35f6c358511 <p><a href="http://business.timesonline.co.uk/tol/business/law/article3328268.ece">Times Online &#8211; Lords refuse to continue hearing case against Simon Mann</a>:</p> <blockquote><p>A landmark case collapsed in unprecedented fashion today as the House of Lords refused to continue hearing a claim brought by Equatorial Guinea against the alleged plotters of a failed coup because it will not allow one of the defendants to meet with his lawyers.</p> <p>Simon Mann, a British former SAS officer accused of instigating the plot, is being held at the notorious Black Beach prison after being secretly extradited to the tiny West African nation from Zimbabwe last week. He has been prevented from meeting with either his lawyers or British consular representatives.</p> <p>Equatorial Guinea&#8217;s stance so angered nine law lords hearing a damages claim the oil-rich government brought against Mr Mann that this morning they abruptly adjourned the proceedings indefinitely.</p></blockquote> <p>An interesting look into the British legal system, and its role in the international arena.</p> "Google, IBM, Microsoft, VeriSign and Yahoo! all join OpenID" https://inpropriapersona.com/articles/google-ibm-microsoft-verisign-and-yahoo-all-join-openid/ Thu, 07 Feb 2008 19:09:00 +0000 08df2df5cf62441d304f11b1f3b9f5c1 <p><a href="http://openid.net/2008/02/">Google, IBM, Microsoft, VeriSign and Yahoo! all join OpenID</a>:</p> <blockquote><p>This morning the OpenID Foundation announced that Google, IBM, Microsoft, VeriSign, and Yahoo! have joined the board. The OpenID Foundation was formed in early 2006 by seven community members with the goal of helping promote, protect and enabling the OpenID technologies and community. Today’s announcement marks a milestone in the maturity and impact that the OpenID community has had. While the OpenID Foundation serves a stewardship role around the community’s intellectual property, the Foundation’s board itself does not make any decisions about the specifications the community is collaboratively building.</p></blockquote> <p>It certainly would be nice to just use, say, my Google login everywhere, instead of create 10,000 different usernames and passwords. <i>Note to self: check for legal, perhaps contractual, implications&#8230;</i></p> "Is Facebook Your “Permanent Record?”" https://inpropriapersona.com/articles/is-facebook-your-permanent-record/ Tue, 05 Feb 2008 06:05:00 +0000 a03ab2cc0e8213258cd60f0a0f15480e <p><a href="http://www.readwriteweb.com/archives/is_facebook_your_permanent_rec.php">ReadWriteWeb &#8211; Is Facebook Your &#8220;Permanent Record?&#8221;</a>:</p> <blockquote><p>The internet is not like a diary, although many people use online journals, blogs, and social networking sites to share their innermost thoughts, feelings, and secrets with the world. With a hardbound diary, you only had to be afraid of your little brother finding it under your mattress; but with the web, the words you write are etched in stone for the entire world to read. And even when you remove your accounts and disable your profiles, you may not really be gone. With Google&#8217;s caching, the Way Back Machine, and even the websites themselves, your data is retained for a lot longer than you may have realized.</p> <p>Take for example, the U.K. user who realized that he was unable to fully delete his Facebook profile. It seems users wishing to remove their Facebook profiles are only given the option to deactivate their accounts. These accounts become inaccessible, but still remain in Facebook&#8217;s database. To really wipe out all information, Facebook advises users log in and manually remove all data from their profile before deactivating their account. This greatly concerned Dave Evans, the senior data protection practice manager at the U.K.&#8217;s Information Commissioner&#8217;s Office: &#8220;One of the things that we&#8217;re concerned about is that if the onus is entirely on the individual to delete their own data,&#8221; he told BBC Radio 4.&#8221;An individual who has deactivated their account might not find themselves motivated enough to delete information that&#8217;s about them, maybe on their wall or other people&#8217;s site.&#8221;</p></blockquote> <p>One might say, &#8220;Of course!&#8221; But it concerns me that this is impacting the lives of children, who one thinks might well not know better. But is this a technical problem, a legal one, or a parenting issue?</p> "Should we fight the proprietary open source power?" https://inpropriapersona.com/articles/should-we-fight-the-proprietary-open-source-power/ Mon, 04 Feb 2008 09:03:00 +0000 c60da6cbcfb2a367c08971534a0cba37 <p><a href="http://web.archive.org/web/20080206103117/http://blogs.zdnet.com:80/open-source/?p=1957">Open Source | ZDNet.com &#8211; Should we fight the proprietary open source power?</a>:</p> <blockquote><p>Mr. Buzzword for February appears to be proprietary open source.</p> <p>This is an open source project which is owned or controlled by one company. Even though it may have a GPL license, you have no more power over it than a single voter in a political system.</p> <p>The definition has changed since I first wrote the Open Source Incline back in 2006. It&#8217;s now a development model, not a licensing model.</p> <p>But the intent is still the same, and the impact similar, as Savio Rodrigues notes. In the proprietary model your own features and bug fixes may be ignored by the project&#8217;s owner &#8212; so what&#8217;s the use?</p></blockquote> <p>Hmm. I&#8217;ll have to give this some thought.</p> "Law lords to rule whether decision to invade Iraq warrants inquiry" https://inpropriapersona.com/news/2008/law-lords-to-rule-whether-decision-to-invade-iraq-warrants-inquiry/ Mon, 04 Feb 2008 01:38:00 +0000 d26c767fc86ce019fb8c5edb879317d7 <p><a href="http://politics.guardian.co.uk/iraq/story/0,,2251860,00.html">Guardian &#8211; Law lords to rule whether decision to invade Iraq warrants inquiry</a>:</p> <blockquote><p>Questions about the legality of Tony Blair&#8217;s decision to join the US in invading Iraq will come under the spotlight before a rarely convened panel of nine law lords in Britain&#8217;s highest court next week.</p> <p>Rose Gentle and Beverley Clarke, the mothers of two 19-year-old soldiers killed in Iraq, will ask the judges to order the government to set up an independent inquiry into whether it took sufficient steps to satisfy itself that the war was legal before launching the invasion in 2003.</p></blockquote> "Inmate Requests Test Public Records Law" https://inpropriapersona.com/articles/inmate-requests-test-public-records-law/ Fri, 01 Feb 2008 18:21:00 +0000 fb3712ba31a4b0aa48a311da4a02aca0 <p><a href="http://web.archive.org/web/20080210190452/http://ap.google.com:80/article/ALeqM5inpmXlELra7D_C3JpJ1oDFvFDNnQD8UHDO401">The Associated Press &#8211; Inmate Requests Test Public Records Law</a>:</p> <blockquote><p>An arsonist imprisoned for firebombing the cars of two lawyers is using his remaining 19 years behind bars to dig up information on the judges, lawyers and corrections officers who helped put him there.</p> <p>But Allan Parmelee&#8217;s hundreds of requests under the state&#8217;s Public Records Act have become so numerous, and so creepy, that a prosecutor has taken the extraordinary step of asking a judge not only to let his office ignore Parmelee&#8217;s pending requests, but to bar him from filing any more.</p></blockquote> <p>I am generally in favor of open government and open records. But how do we enforce limits to avoid abuse and threats? Not everyone is, after all, looking out for the public interest.</p> "Ruling gives boost to millions of carers" https://inpropriapersona.com/news/2008/ruling-gives-boost-to-millions-of-carers/ Thu, 31 Jan 2008 23:37:00 +0000 792828d139caaf528a2286037cc67b6d <p><a href="http://business.timesonline.co.uk/tol/business/law/article3282275.ece">Times Online &#8211; Ruling gives boost to millions of carers</a>:</p> <blockquote><p>Millions of people juggling a career with caring for a disabled family member are likely to receive greater protection in the workplace after a British secretary won the latest round in a long-running legal battle.</p> <p>An adviser to Europe&#8217;s highest court said today that Sharon Coleman, a former legal secretary who is the primary carer for her disabled son, was entitled to the same rights against direct discrimination at work that disabled people already enjoy.</p></blockquote> <p>The responses to this ruling in the comments are particularly interesting, I think. Note that right now the ADA in the U.S., which protects the rights of the disabled, hasn&#8217;t yet been extended to offer any protection to caregivers. &#8220;Carers&#8221; (a term that&#8217;s found popular support in Australia and in the U.K., but has yet to really catch on in the U.S.) must look to other protections instead, perhaps equal protection or sex discrimination legislation.</p> "Lotto rape case victory opens gates for compensation" https://inpropriapersona.com/news/2008/lotto-rape-case-victory-opens-gates-for-compensation/ Wed, 30 Jan 2008 18:19:00 +0000 47e7fd2189191e6a001f6b472d486399 <p>From Time Online (UK) &#8211; <a href="http://business.timesonline.co.uk/tol/business/law/article3276026.ece">Lotto rape case victory opens gates for compensation</a>: </p> <blockquote> <p> One woman’s quest for justice against the so-called Lotto rapist ended in victory this morning with a court ruling that paves the way for thousands of sex abuse victims to sue their attackers for compensation. </p> <p> In a landmark ruling, five law lords swept away the current bar on historic claims being brought for sexual assault. Until now, victims have been precluded by law from bringing a claim more than six years after an attack or, in child abuses case, more than six years after reaching majority at 18.</p> </blockquote> "UK High Court Allows Software Patents" https://inpropriapersona.com/articles/uk-high-court-allows-software-patents/ Tue, 29 Jan 2008 01:03:00 +0000 ad4102590a3a9f9416d123a851d3e7f0 <p><a href="http://techdirt.com/articles/20080127/10330478.shtml">Techdirt &#8211; UK High Court Follows Bad US Decision To Allow Software Patents</a>: </p> <blockquote><p>It looks like the UK is about to make the same dangerous mistake that US courts made a while back. A decision there has now stated that the Patent Office shouldn&#8217;t automatically reject patent apps on software.</p></blockquote> <p>Although I am in general agreement with Techdirt on this one, I suspect there might be an unexplored, middle ground on this, but I haven&#8217;t quite been able to conceptualize it yet. (Perhaps I never will.) </p> <div> </div> <div>Perhaps it is simply that I believe that if properly applied by a patent office a by courts, software patents aren&#8217;t necessarily bad—but then again, I haven&#8217;t seem them very well applied so far in the U.S. Generally courts (and the PTO) don&#8217;t really seem to understand the underlying technology very well, making for poorly reasoned decisions (on a technical level). </div> <div> </div> <div>Plus, 20 or so years of patent protection seems way too long for the quick-moving world of software. (That may be my biggest issue.) I&#8217;m never that fond of random differences in the law for different kinds of IP, for example, but maybe that&#8217;s what&#8217;s needed here.</div> "Copyright Law and Cease-and-Desist Letters" https://inpropriapersona.com/articles/copyright-law-and-cease-and-desist-letters/ Mon, 28 Jan 2008 19:09:00 +0000 14fead128ccc91d23c9d6b32eaabf38d <p><a href="http://www.flickr.com/photos/presta/3016894110/"><img class="alignright" title="&quot;civic and speedy&quot; by Flickr user presta, used under a Creative Commons Attribution-Noncommercial 2.0 license" src="http://farm4.static.flickr.com/3205/3016894110_fdbcf59425_m.jpg" alt="" width="240" height="160" /></a><a href="http://volokh.com/">The Volokh Conspiracy</a> has a <a href="http://volokh.com/posts/1201543498.shtml">follow-up</a> to the story about <a href="https://inpropriapersona.com/2008/01/court-says-you-can-copyright-cease-and.html">copyrighting cease &amp; desist letters</a>:</p> <blockquote><p>The court &#8230; in this case &#8230; <strong>did not decide that posting a cease-and-desist letter is copyright infringement</strong> (which would have required considering the fair use defense). Rather, the court was only asked to decide whether the plaintiff could use a subpoena (under <a href="http://www.bitlaw.com/source/17usc/512.html">17 U.S.C. § 512(h)</a>) to discover the identity of the poster. The court concluded that for this, the potential plaintiff only had to show that copyright law presumptively protected his work (which it does); the fair use inquiry would then take place when the merits of the case are litigated, at trial or on a pretrial motion.</p></blockquote> <blockquote><p>If it weren&#8217;t for the unpublished nature of the letter, <a href="http://caselaw.lfindlaw.com/scripts/getcase.pl?court=us&amp;vol=000&amp;invol=U10426">the Supreme Court&#8217;s <em>Campbell v. Acuff-Rose</em> decision</a>, on which I rely in my quick analysis above, would make this an almost open-and-shut fair use case. The unpublished nature of the work undermines that in some measure (see, e.g., <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&amp;vol=471&amp;invol=539"><em>Harper &amp; Row v. Nation Enterprises</em></a>); but <strong>I still think the copier&#8217;s fair use case is quite strong</strong>.</p></blockquote> <p>The rest of the article is worth reading: <a href="http://volokh.com/posts/1201543498.shtml">Copyright Law and Cease-and-Desist Letters</a>.</p> <p><strong>Update: a court <a href="https://inpropriapersona.com/2008/01/court-says-you-can-copyright-cease-and.html">ruled against the fair use defense</a>.</strong></p> "Court Says You Can Copyright A Cease-And-Desist Letter" https://inpropriapersona.com/news/2008/court-says-you-can-copyright-a-cease-and-desist-letter/ Mon, 28 Jan 2008 01:37:00 +0000 b630820ce83bd179dd43811ea40dc631 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 200px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Copyright.svg"><img title="© is the copyright symbol in a copyright notice" src="http://upload.wikimedia.org/wikipedia/commons/thumb/b/b0/Copyright.svg/200px-Copyright.svg.png" alt="© is the copyright symbol in a copyright notice" width="200" height="200" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://www.techdirt.com/articles/20080125/18070575.shtml">Techdirt: Court Says You Can Copyright A Cease-And-Desist Letter</a>:</p> <blockquote><p>Back in October, we wrote about a law firm that was <a href="http://www.techdirt.com/articles/20071005/174623.shtml">claiming a copyright</a> on the cease-and-desist letters it sent out, and insisting that it was a violation to repost them. It&#8217;s long been believed that cease-and-desist letters that have no new creative expression and are merely boilerplates are likely not covered by copyright. On top of that, preventing someone from copying a cease-and-desist letter or posting it on their own website seems like a pretty severe First Amendment violation. The group Public Citizen hit back against this law firm&#8217;s claims, but surprisingly, a judge has now <a href="http://www.prweb.com/releases/DozierInternetLaw/InternetLawyer/prweb650951.htm">agreed that you can copyright cease-and-desist letters</a> (thanks to <a href="http://blog.ericgoldman.org/">Eric Goldman</a> for emailing over the link).</p></blockquote> <p>Hard to know what to make of this, exactly. On the one hand, why not allow copyright on such letter? On the other hand are strong fair-use considerations such that even if someone owns the copyright on such a letter, posting it may still be fine. (Or does one now need to quote from it to qualify?) Public-policy considerations are a major component of copyright and fair use (despite how the law sometimes appears to operate), and this should be one such case. It&#8217;ll be interesting to see where this goes from here.</p> <p><strong>See my previous post on this: <a href="https://inpropriapersona.com/2008/01/copyright-law-and-cease-and-desist.html">Copyright Law and Cease-and-Desist Letters</a>.</strong></p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=88a77320-d42b-42e8-9415-d9a758143b78" alt="" /></div> "Bush Order Expands Network Monitoring" https://inpropriapersona.com/articles/bush-order-expands-network-monitoring/ Sun, 27 Jan 2008 23:54:00 +0000 ebdfd506221b1c6316fa6afe4e67ed37 <p><a href="http://www.washingtonpost.com/wp-dyn/content/article/2008/01/25/AR2008012503261.html">WaPo &#8211; Bush Order Expands Network Monitoring</a>:</p> <blockquote><p>President Bush signed a directive this month that expands the intelligence community&#8217;s role in monitoring Internet traffic to protect against a rising number of attacks on federal agencies&#8217; computer systems.</p></blockquote> <p>Somehow, I am <i>not</i> reassured by this news.</p> "What Copyright Law and Plane Crashes Have in Common" https://inpropriapersona.com/articles/what-copyright-law-and-plane-crashes-have-in-common/ Sun, 27 Jan 2008 17:50:00 +0000 9f077827e7828d7ffd32f81150a1a21f <p><a href="http://www.concurringopinions.com/archives/2008/01/what_copyright.html#more">Concurring Opinions &#8211; What Copyright Law and Plane Crashes Have in Common</a>:</p> <blockquote><p>As <a href="http://volokh.com/posts/1201130195.shtml">others</a> have already <a href="http://prawfsblawg.blogs.com/prawfsblawg/2008/01/wisdom-sometime.html">noted</a>, the Atlantic Monthly is now making its articles available online, including browseable issues going ten years back and select articles through most of the twentieth century. I immediately checked it out to see if one of my favorite Atlantic articles was up, and it is: William Langewiesche&#8217;s <a href="http://www.theatlantic.com/doc/199803/valujet-crash">The Lessons of ValuJet 592</a>. Langewiesche&#8217;s article is a captivating look at a classic &#8220;system accident,&#8221; the 1996 crash of a ValuJet (now AirTran) plane due to the improper loading of unspent oxygen generators in the hold. I highly recommend it.</p></blockquote> <p>This is a very interesting discussion of &#8220;<a href="http://en.wikipedia.org/wiki/System_accident">system accidents</a>,&#8221; and how the problems of design in airplanes and everyday physical objects (like doors <a href="http://www.baddesigns.com/doors.html">with &#8220;pull&#8221; bars that in fact are supposed to be pushed</a>), are analogous to problems in copyright law:</p> <blockquote><p>How does all of this relate to copyright? Copyright law is badly designed to relate to humans. It&#8217;s particularly maladapted to apply to the humans that, more and more, need to know what the rules of copyright are: non-lawyer individual consumers.</p></blockquote> "MPAA Admits Mistake on Downloading Study" https://inpropriapersona.com/news/2008/mpaa-admits-mistake-on-downloading-study/ Wed, 23 Jan 2008 23:16:00 +0000 ab3f125169a44e5749888841e3b005a2 <p><a href="http://news.wired.com/dynamic/stories/C/COLLEGE_STUDENTS_DOWNLOADING?SITE=WIRE&amp;SECTION=HOME&amp;TEMPLATE=DEFAULT&amp;CTIME=2008-01-23-09-06-05">Wired News &#8211; MPAA Admits Mistake on Downloading Study</a>: </p> <blockquote><p>Hollywood laid much of the blame for illegal movie downloading on college students. Now, it says its math was wrong.</p></blockquote> <blockquote><p>In a 2005 study it commissioned, the Motion Picture Association of America claimed that 44 percent of the industry&#8217;s domestic losses came from illegal downloading of movies by college students, who often have access to high-bandwidth networks on campus.</p></blockquote> <blockquote><p>The MPAA has used the study to pressure colleges to take tougher steps to prevent illegal file-sharing and to back legislation currently before the House of Representatives that would force them to do so.</p></blockquote> <blockquote><p>But now the MPAA, which represents the U.S. motion picture industry, has told education groups a &#8220;human error&#8221; in that survey caused it to get the number wrong. It now blames college students for about 15 percent of revenue loss.</p></blockquote> "Fair use of copyrighted material benefits US economy: report" https://inpropriapersona.com/articles/fair-use-of-copyrighted-material-benefits-us-economy-report/ Mon, 21 Jan 2008 02:50:00 +0000 0ee10c8f5d5c66ac7dad22e25983b022 <p><a href="http://web.archive.org/web/20110413082332/http://jurist.law.pitt.edu/jurist_search.php?q=copyright"><img style="float:right;cursor:hand;width:100px;margin:0 0 10px 10px;" src="http://web.archive.org/web/20110514003622/http://jurist.law.pitt.edu/topstoryphoto/frontcopyright.jpg" border="0" alt="" /></a><br /> <a href="http://web.archive.org/web/20110312072010/http://jurist.law.pitt.edu/paperchase/2007/09/fair-use-of-copyrighted-material.php">JURIST &#8211; Paper Chase: Fair use of copyrighted material benefits US economy: report</a>:</p> <blockquote><p>The <a href="http://www.ccianet.org/">Computer and Communications Industry Association</a> (CCIA) released a <a href="http://web.archive.org/web/20110717152346/http://www.ccianet.org/artmanager/uploads/1/FairUseStudy-Sep12.pdf">report</a> Wednesday saying that <a href="http://www.copyright.gov/fls/fl102.html">fair use exceptions</a> to US copyright laws create more than $4.5 trillion in revenue in the US annually, employ millions of workers, and represented one-sixth of the total US GDP in 2006. The report, released at a briefing on Capitol Hill, indicates that media firms, educational establishments and software developers that benefit from the fair use of content contribute more than three times the amount that copyright-controlled industries do to the US economy.</p></blockquote> <p>See also: <a href="http://web.archive.org/web/20080610100047/http://www.vnunet.com:80/vnunet/news/2198704/copyright-harms-economy-report">Vnunet.com</a>.</p> "Judge Orders RIAA to Pay Legal Fees to Falsely Accused Lawsuit Target – the Second Such Ruling" https://inpropriapersona.com/articles/judge-orders-riaa-to-pay-legal-fees-to-falsely-accused-lawsuit-target-the-second-such-ruling/ Sat, 19 Jan 2008 02:47:00 +0000 90a379f6dea8fbf52ece4ef6a8d470ca <p><a href="http://blog.wired.com/27bstroke6/2008/01/judge-orders-ri.html">Threat Level from Wired.com &#8211; Judge Orders RIAA to Pay Legal Fees to Falsely Accused Lawsuit Target &#8212; the Second Such Ruling </a>:</p> <blockquote><p>A litigation target of the Recording Industry Association of America has been awarded attorney&#8217;s fees after the music business falsely sued an Oregon woman for copyright infringement.</p></blockquote> <blockquote><p>It is the second time a federal judge has awarded defense expenses to an RIAA target who was falsely accused.</p></blockquote> <blockquote><p>Andersen, in response to being sued, has filed a lawsuit against the RIAA seeking class-action status in Oregon federal court. The case, which is pending, seeks to represent RIAA defendants who say they have been falsely sued.</p></blockquote> <blockquote><p>The RIAA has sued more than 20,000 for copyright infringement. Most have settled out of court.</p></blockquote> <blockquote><p>Only one case has gone to trial, and the defendant lost when a jury ordered her to pay $222,000 for sharing 24 songs on Kazaa.</p></blockquote> <p>From my perspective—a measly law student—the RIAA has been abusing the legal system and the trust the system places in lawyers not to proceed with flaky evidence. Instead, they have taken advantage both of trust and the lack of technical expertise in the court—and provided &#8220;experts&#8221; who, in my opinion, are basically frauds.</p> <p>Just because infringement happens—even on a massive scale—that doesn&#8217;t give a copyright owner the ability to attack both innocent and guilty alike with our legal system.</p> "Why the Interdisciplinary Movement in Legal Academia Might be a Bad Idea (For Most Law Schools)" https://inpropriapersona.com/articles/why-the-interdisciplinary-movement-in-legal-academia-might-be-a-bad-idea-for-most-law-schools/ Thu, 17 Jan 2008 03:12:00 +0000 73f9ef44cdff0192fdcab844907a982c <p><a href="http://balkin.blogspot.com/2008/01/why-interdisciplinary-movement-in-legal.html">Balkanization &#8211; Why the Interdisciplinary Movement in Legal Academia Might be a Bad Idea (For Most Law Schools)</a>:</p> <blockquote><p>Interdisciplinary studies are currently the rage in legal academia. An increasing number of law schools are touting their interdisciplinary programs, which include offering courses from other academic disciplines (economics, statistics, anthropology, etc.) in the law school curriculum, creating law and social science institutes of various sorts within the law school, offering joint JD/PhD programs, and hiring JD/ PhD faculty.</p> <p>It seems like an irresistible movement with the potential to transform legal academia. But based upon the historical evidence and the nature of legal practice, I&#8217;m skeptical.</p></blockquote> <p>Personally, I find interdisciplinary approaches obvious and inevitable, and hardly revolutionary. Transformative? Perhaps. But then again, the law has always been (and continues to be) interdisciplinary (the facts of every case involve other disciplines, after all), so what is so drastic about allowing law students to explore that as students?</p> "Who Protects Your Cloud Data?" https://inpropriapersona.com/articles/who-protects-your-cloud-data/ Mon, 14 Jan 2008 01:52:00 +0000 f86a07c347a5ef9174aab0960ae404c7 <p><a href="http://web.archive.org/web/20100410225252/http://webworkerdaily.com:80/2008/01/13/who-protects-your-cloud-data/">Web Worker Daily &#8211; Who Protects Your Cloud Data?</a>:</p> <blockquote><p>Yet in a world of imperfect hardware and software, as well as regulatory and legal issues, choosing one company for storage is still ultimately a gamble. It may be unthinkable that an EMC or Amazon or Google could fail, but it&#8217;s not impossible. No matter how carefully you choose, entrusting your data to a single online storage vendor is the equivalent to storing it on a single hard drive: it introduces a single point of failure into the system.</p></blockquote> "Opinion: 10GB of e-mail could cost you $1M" https://inpropriapersona.com/articles/opinion-10gb-of-e-mail-could-cost-you-1m/ Sun, 13 Jan 2008 06:16:00 +0000 830d35bb1d2ee06412e3cf2db514d113 <p><a href="http://www.amazon.com/Federal-Rules-Civil-Procedure-Educational/dp/0314191445%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0314191445"><img class="alignright" src="http://ecx.images-amazon.com/images/I/61qRbbNCC1L._SL160_.jpg" alt="" width="118" height="160" /></a><a href="http://www.computerworld.com/action/article.do?command=viewArticleBasic&amp;articleId=9057019&amp;source=rss_news10">Computerworld Opinion &#8211; 10GB of e-mail could cost you $1M</a>:</p> <blockquote><p>The growing number of e-discovery requests associated with the recently updated Federal Rules of Civil Procedure (FRCP) is forcing companies to look for ways to automate their e-discovery process (see &#8220;<a href="http://web.archive.org/web/20080621014342/http://www.computerworld.com:80/action/article.do?command=viewArticleBasic&amp;taxonomyName=disaster_recovery&amp;articleId=303416&amp;taxonomyId=151&amp;intsrc=kc_feat">FAQ: Changes to the Federal Rules of Civil Procedures Affect Storage Plans</a>&#8220;).</p></blockquote> "Three concepts of surveillance in the National Surveillance State" https://inpropriapersona.com/articles/three-concepts-of-surveillance-in-the-national-surveillance-state/ Sat, 12 Jan 2008 22:20:00 +0000 25a395a1e3fb23c273880a4a9adb0914 <p><a href="http://balkin.blogspot.com/2008/01/three-concepts-of-surveillance-in.html">Balkinization &#8211; Three concepts of surveillance in the National Surveillance State</a>:</p> <blockquote><p>In this <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930514">article</a> with Sandy Levinson and on the pages of this blog I&#8217;ve [Professor Balkin] been arguing that the United States is gradually moving from a National Security State to a National Surveillance State, which uses new information technologies and both public action and private cooperation to govern through the collection, collation, and analysis of information obtained through a wide variety of surveillance practices. The question is now whether we will have such a state, but what kind of state it will be, and whether it adequately protects personal freedoms and civic equality. It is important to recognize that the National Surveillance State is not just a project of the national government, but also state and local governments, who will use tools of surveillance for many different purposes. It also involves surveillance by private actors, including most notably businesses, who will use surveillance to identify potential customers, provide goods and services, and sell information both to other private entities and to the government. In this way the National Surveillance State promises to offer much more technologically sophisticated and pervasive forms of surveillance than we saw in its predecessor, the National Security State. This in itself is not cause for despair, but it does suggest that we need to rethink how to protect valuable liberties in this changing environment of public governance and private business.</p></blockquote> "Whose bandwidth is being given away?" https://inpropriapersona.com/articles/whose-bandwidth-is-being-given-away/ Sat, 12 Jan 2008 03:11:00 +0000 9b96779ec344ddd28e733d4020cf1445 <p><a href="http://www.networkworld.com/community/node/23714">NetworkWorld.com Community &#8211; Whose bandwidth is being given away? </a>:</p> <blockquote><p>But it&#8217;s on the point of ISP terms of service that I believe Schneier&#8217;s case falls. First, he expresses no concern whatsoever about others stealing his bandwidth from his open network &#8212; &#8220;pay it forward,&#8221; he suggests.</p></blockquote> <blockquote><p>But bandwidth isn&#8217;t the only issue here, at least not from the ISP&#8217;s standpoint; it&#8217;s lost revenue. The reason ISP terms of service forbid customers from sharing bandwidth with neighbors is as much or more about the provider&#8217;s need to turn a buck as it is the finite nature of the product.</p></blockquote> <p>A big question here is: who&#8217;s bandwidth is being shared? The subscriber or the ISP&#8217;s? That puts it in &#8220;either-or&#8221; terms, of course, when really it isn&#8217;t so clear cut. Arguments cut both ways.</p> <p>See also:</p> <ul> <li><a href="https://inpropriapersona.com/2008/01/steal-this-wi-fi.html">Steal This Wi-Fi</a></li> <li><a href="https://inpropriapersona.com/search?q=ok+share+wifi">Is it OK to Share My WiFi? (Series)</a></li> <li><a href="https://inpropriapersona.com/2007/07/why-provide-free-wifi.html">Why Provide Free WiFi?</a></li> </ul> "Steal This Wi-Fi" https://inpropriapersona.com/articles/steal-this-wi-fi/ Fri, 11 Jan 2008 04:48:00 +0000 2223b3bc28fd40380d5f3633940a14cd <p><a href="http://www.wired.com/politics/security/commentary/securitymatters/2008/01/securitymatters_0110">Wired Security Matters &#8211; Steal This Wi-Fi</a>:</p> <blockquote><p>Whenever I talk or write about my own security setup, the one thing that surprises people &#8212; and attracts the most criticism &#8212; is the fact that I run an open wireless network at home. There&#8217;s no password. There&#8217;s no encryption. Anyone with wireless capability who can see my network can use it to access the internet.</p></blockquote> <blockquote><p>I spoke to several lawyers about this, and in their lawyerly way they outlined several other risks with leaving your network open.</p></blockquote> <blockquote><p>While none thought you could be successfully prosecuted just because someone else used your network to commit a crime, any investigation could be time-consuming and expensive. You might have your computer equipment seized, and if you have any contraband of your own on your machine, it could be a delicate situation. Also, prosecutors aren&#8217;t always the most technically savvy bunch, and you might end up being charged despite your innocence. The lawyers I spoke with say most defense attorneys will advise you to reach a plea agreement rather than risk going to trial on child-pornography charges.</p></blockquote> <p>Personally, I don&#8217;t advocate this, but I do provide a <a href="https://inpropriapersona.com/2007/09/now-part-of-merakis-free-net-sf.html">Meraki</a>-run SF &#8220;Free the Net&#8221; node that goes through my home Internet connection. It&#8217;s firewalled off from my main internal network, and it&#8217;s got QoS inflicted on it to avoid having neighbors using all my (limited&#8230;) cable bandwidth, but I too see providing some amount of wireless connectivity as a public good, and neighborly.</p> "FBI Wiretaps Dropped Due to Unpaid Bills" https://inpropriapersona.com/articles/fbi-wiretaps-dropped-due-to-unpaid-bills/ Thu, 10 Jan 2008 19:25:00 +0000 e690a4343ada24bf04628677d9223773 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:US-FBI-ShadedSeal.svg"><img title="The Seal of the United States Federal Bureau o..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/7/70/US-FBI-ShadedSeal.svg/300px-US-FBI-ShadedSeal.svg.png" alt="The Seal of the United States Federal Bureau o..." width="300" height="309" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://www.newsvine.com/_news/2008/01/10/1217413-fbi-wiretaps-dropped-due-to-unpaid-bills">Newsvine &#8211; FBI Wiretaps Dropped Due to Unpaid Bills</a>:</p> <blockquote><p>Telephone companies have cut off FBI wiretaps used to eavesdrop on suspected criminals because of the bureau&#8217;s repeated failures to pay phone bills on time.</p></blockquote> <p>Do you feel safe yet? This sort of thing makes me wonder if privacy concerns about government monitoring are overblown, simply on the basis of government incompetence!</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "Proof Positive that the Intelligence Oversight System is Hopelessly Compromised" https://inpropriapersona.com/news/2008/proof-positive-that-the-intelligence-oversight-system-is-hopelessly-compromised/ Wed, 09 Jan 2008 22:30:00 +0000 66e3a3169285ee716066da86d5e9a37d <p><a href="http://balkin.blogspot.com/2008/01/proof-positive-that-oversight-system-is.html">Balkinization &#8211; Proof Positive that the Intelligence Oversight System is Hopelessly Compromised</a>: </p> <blockquote><p>Now that the Harman/Muller letters have been declassified, it is evident that there was no basis for classifying them in the first place. And yet they were classified, as a matter of course. And the classification continued, even after the CIA program was announced by the President. Representative Harman didn&#8217;t do anything about that, either . . . because the Intelligence oversight committees are entirely beholden to the agencies they are supposed to be overseeing.</p></blockquote> "Meraki proposes free Wi-Fi network for S.F." https://inpropriapersona.com/articles/meraki-proposes-free-wi-fi-network-for-s-f/ Sat, 05 Jan 2008 02:58:00 +0000 676bd9ae3784c0bdf0098aec90bed6af <p><a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/01/04/MNCDU8UKU.DTL&amp;tsp=1">Mountain View&#8217;s Meraki proposes free Wi-Fi network for S.F.</a>:<br /> <img src="http://web.archive.org/web/20120219192329/http://meraki.com/wp/wp-content/themes/meraki15/images/logo.gif" alt="Meraki Networks" border="0" /></p> <blockquote><p>San Francisco&#8217;s plan to provide citywide wireless Internet access, which foundered last summer when EarthLink pulled out, is being revived by a Mountain View company that wants to turn the city into a test site for its vision of a low-cost, community-powered system.</p></blockquote> <blockquote><p>For what would be the country&#8217;s largest so-called mesh network, a system that uses a constellation of &#8220;repeater antennas&#8221; to spread signals, Meraki says it will donate enough equipment and Internet access to provide free wireless service to all residents. The network would use as many as 15,000 wireless antennas to relay signals from home to home in a type of digital daisy-chain.</p></blockquote> <p>I&#8217;m already a Meraki node, although I&#8217;m sharing out my own service, and not using a Meraki-supplied Internet connection. The equipment&#8217;s quite good, though, and perhaps I can eventually replace my Internet connection with one paid for by Meraki!</p> "The Open Contract" https://inpropriapersona.com/articles/the-open-contract/ Thu, 03 Jan 2008 04:50:00 +0000 aba017509aef4bb236232dce8e527eab <p><a href="http://gesturelab.com/?p=107">Steve Gillmor&#8217;s GestureLab &#8211; The Open Contract</a>: </p> <blockquote><p>Fred Wilson makes an excellent case for why <a href="http://newsgangbeta.tagregator.com/item/id=13500&amp;from=top">users should be more aware of where their data is being harvested</a>. He raises concerns about Google’s aggressive march toward what can be loosely described as a data monopoly, where the scale of the pool of data creates a barrier to entry points for the startups Fred so ably funds and arbitrages. We can forgive his wrapping this economic imperative in a clarion call for the protection of innovation, but his point is valid as far as it goes.</p></blockquote> "RIAA Behaving Badly; Let’s Cut Their Copyright Privileges" https://inpropriapersona.com/articles/riaa-behaving-badly-lets-cut-their-copyright-privileges/ Wed, 02 Jan 2008 20:55:00 +0000 35153e71110f773052b1f3da86e55089 <p><a href="http://www.informationweek.com/blog/main/archives/2008/01/riaa_behaving_b.html">RIAA Behaving Badly; Let&#8217;s Cut Their Copyright Privileges &#8211; Wolfe&#8217;s Den Blog &#8211; InformationWeek</a>:</p> <blockquote><p>Innocent consumers are being bothered by another round of the record industry behaving badly, via more lawsuits and anti-copying threats. This time, though, I&#8217;ve got a solution. We should do what we do to children who misbehave: Take away their privileges. Here&#8217;s the deal.</p> <p>How about we cut the copyright terms down to five years. Retroactively. So now &#8220;Stairway to Heaven&#8221; is in the public domain. Hey, the ongoing RIAA lawsuit problem is gone in one fell swoop.</p> <p>Do I hear some objections in the courtroom, like if we cut down copyright protections, artists lose out? This would be a legitimate complaint if artists really benefited currently from copyright. But they mostly don&#8217;t. It&#8217;s generally the large corporations who extract the maximum benefit from their rights, and then trickle a little of it down to songwriters and authors. (Even a little blogger such as myself doesn&#8217;t own the rights to his own words; my employer does. Yeah, I know: &#8220;But they give you a job and they pay you.&#8221; Whatever.)</p> <p>What about those who say copyrights are some kind of God-given right, which is our due under a capitalist system? That&#8217;s simply a misunderstand of their purpose. Copyrights, like patents, weren&#8217;t implemented to protect their owners in perpetuity. They are part of a delicate dance which attempts to balance societal benefits against incentives for writers and inventors. The intent is that you want to incentivize people to push the state of the creative and technical arts, but you don&#8217;t want give those folks such overbearing protections that future advances by other innovators are stifled.</p> <p>Indeed, that&#8217;s the crux of the current debate over patents, where the thinking is that there are too many companies which are nothing more than patent trolls, and that their manipulation of the legal system is subverting the intent of the patents in the first place. Fortunately, what&#8217;s happening with copyrights is much easier to parse, mostly thanks to the ham-handed tactics of the RIAA.</p></blockquote> "Do the U.S. News Rankings Matter?" https://inpropriapersona.com/articles/do-the-u-s-news-rankings-matter/ Wed, 02 Jan 2008 13:44:00 +0000 2b7b320e847b2f367ed0d3e31fb47b19 <p><a href="http://blogs.wsj.com/law/2007/12/31/do-the-us-news-rankings-matter/">Law Blog &#8211; WSJ.com: Do the U.S. News Rankings Matter?</a>:</p> <blockquote><p>Cameron Stracher&#8217;s essays on the legal profession, which often appear in the WSJ, have been the subject of some of our more provocative posts. Today Stracher, a professor at New York Law, continues his run with a WSJ op-ed picking apart the U.S. News &amp; World Report&#8217;s rankings.</p> <p>Stracher pegs his column to the news that U.S. News is ranking high schools for the first time. But he turns his attention to law-school rankings and asks the question: Do rankings matter at all and, more importantly, should they?</p></blockquote> "Rothman on Custom in Intellectual Property" https://inpropriapersona.com/articles/rothman-on-custom-in-intellectual-property/ Wed, 02 Jan 2008 00:41:00 +0000 f9be18ebf39cdc1fb2f5a200305db0df <p><a href="http://lsolum.typepad.com/legaltheory/2007/12/rothman-on-cust.html">Legal Theory Blog: Rothman on Custom in Intellectual Property</a>:</p> <blockquote><p>The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique of the incorporation of customs in IP law and provides a theoretical framework for future analysis of private ordering regimes in IP. The article also provides additional support to those who have criticized the incorporation of custom in other fields.</p></blockquote> "Social Networks - Why You Should Care" https://inpropriapersona.com/articles/slaw-social-networks-why-you-should-care/ Tue, 01 Jan 2008 08:22:00 +0000 eab49982663e3b88da72b0b63ee9722d <p><a href="http://www.slaw.ca/2007/12/27/social-networks-%E2%80%93-why-you-should-care/">Slaw: Social Networks &#8211; Why You Should Care</a>:</p> <blockquote><p>How can you leverage emerging knowledge about social networking? Here are some suggestions:</p> <ol> <li>Use social sites for screening applicants</li> <li>Use social sites for alumni (Hill and Knowlton and Siemens did this instead of creating their own internal alumni databases)</li> <li>Use social sites for recruitment (Ernst &amp; Young does this to stay in touch with thousands of young recruits)</li> <li>Keep an eye on your brand on social media – deep web search (several Firms have been hit by this &#8211; there is also an opportunity for law firms here to help protect clients)</li> <li>Look for internal opportunities to use social media (start small) &#8211; inside (intranets) and with clients (extranets)</li> <li>Consider (seriously) social tagging of internal resources</li> <li>Map your social networks / understand them (Hill and Knowlton, various accounting and consulting firms have done this with surprising results)</li> <li>Consider networking as a framework for: Expertise location; Knowledge location; Learning; Mentoring; Etc.</li> <li>Use social network analysis as a tool for accelerating integration post merger / acquisition</li> <li>Use social network analysis to look for opportunities outside of the organization &#8211; some firms are mining patent filings and research publications to map opportunities for partnerships and acquisitions.</li> </ol> </blockquote> "In the Fight Over Piracy, a Rare Stand for Privacy - New York Times" https://inpropriapersona.com/articles/in-the-fight-over-piracy-a-rare-stand-for-privacy-new-york-times/ Tue, 01 Jan 2008 08:15:00 +0000 bce43ef49c6248a7c832f52284407899 <p><a href="http://www.nytimes.com/2007/12/31/college/coll31bar.html">In the Fight Over Piracy, a Rare Stand for Privacy &#8211; New York Times</a>:</p> <blockquote><p>The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs on a file-sharing network.</p> <p>The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 250px" class="wp-caption alignright"><a href="http://www.crunchbase.com/company/newyorktimes"><img class="zemanta-img-configured" title="Image representing New York Times as depicted ..." src="http://www.crunchbase.com/assets/images/resized/0001/0591/10591v1-max-250x250.png" alt="Image representing New York Times as depicted ..." width="250" height="46" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> </div> </blockquote> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=95927ec7-893c-4289-a38a-e9981f6eb46f" alt="" /></div> "No email privacy rights under Constitution, US gov claims" https://inpropriapersona.com/articles/no-email-privacy-rights-under-constitution-us-gov-claims/ Mon, 05 Nov 2007 17:56:00 +0000 0ba3d30fa0b50469dbec02987d3fa5b6 <p><a href="http://www.theregister.co.uk/2007/11/04/4th-amendment_email_privacy/">The Register: No email privacy rights under Constitution, US gov claims</a></p> <blockquote><p>On October 8, 2007, the United States Court of Appeals for the Sixth Circuit in Cincinnati granted the government&#8217;s request for a full-panel hearing in United States v. Warshak case centering on the right of privacy for stored electronic communications. At issue is whether the procedure whereby the government can subpoena stored copies of your email—similar to the way they could simply subpoena any physical mail sitting on your desk—is unconstitutionally broad.</p> <p>This appears to be more than a mere argument in support of the constitutionality of a Congressional email privacy and access scheme. It represents what may be the fundamental governmental position on Constitutional email and electronic privacy &#8211; that there isn&#8217;t any. What is important in this case is not the ultimate resolution of that narrow issue, but the position that the United States government is taking on the entire issue of electronic privacy. That position, if accepted, may mean that the government can read anybody&#8217;s email at any time without a warrant.</p></blockquote> <p><strong>Update:</strong> the court first held that <a href="https://inpropriapersona.com/2007/06/search-warrants-required-for-email.html">warrants are required</a>. Later, a full panel <a href="http://www.eff.org/deeplinks/2008/07/sixth-circuit-dodges-constitutional-question-email">dismissed the case on procedural grounds</a>, leaving the issue unsettled.</p> "Sync your inbox across devices with free IMAP" https://inpropriapersona.com/articles/sync-your-inbox-across-devices-with-free-imap/ Fri, 26 Oct 2007 05:11:00 +0000 6221a21fd9bf272a4c885984c44c121d <p><a href="http://gmailblog.blogspot.com/2007/10/sync-your-inbox-across-devices-with.html">Official Gmail Blog &#8211; Sync your inbox across devices with free IMAP</a>:</p> <blockquote><p>Sync your inbox across devices instantly and automatically. Whether you read or write your email on your phone or on your desktop, changes you make to Gmail will be seen from anywhere you access your inbox. Don&#8217;t fret if you don&#8217;t see &#8220;IMAP Access&#8221; yet under the Settings menu. We&#8217;re rolling it out to everyone over the next few days.</p></blockquote> <p>Finally!</p> "Mandate for Public Access to NIH-Funded Research Poised to Become Law" https://inpropriapersona.com/articles/mandate-for-public-access-to-nih-funded-research-poised-to-become-law/ Wed, 24 Oct 2007 23:05:00 +0000 3b47f8ec9adabc08e1addd030e6b3396 <p><a href="http://www.taxpayeraccess.org/media/release07-1024.html">ATA &#8211; Mandate for Public Access to NIH-Funded Research Poised to Become Law</a>:</p> <blockquote><p>The U.S. Senate last night approved the FY2008 Labor, HHS, and Education Appropriations Bill (S.1710), including a provision that directs the National Institutes of Health (NIH) to strengthen its Public Access Policy by requiring rather than requesting participation by researchers. The bill will now be reconciled with the House Appropriations Bill, which contains a similar provision, in another step toward support for public access to publicly funded research becoming United States law.</p></blockquote> "Judge Mukasey is Agnostic on Whether Waterboarding is Lawful" https://inpropriapersona.com/articles/judge-mukasey-is-agnostic-on-whether-waterboarding-is-lawful/ Thu, 18 Oct 2007 23:53:00 +0000 4bfeac854a240ebfb93e355914ff9b84 <p><a href="http://balkin.blogspot.com/2007/10/judge-mukasey-is-agnostic-on-whether.html">Balkinization &#8211; Judge Mukasey is Agnostic on Whether Waterboarding is Lawful</a>:</p> <blockquote><p>Just now, in response to repeated questions, he insisted that he did not know enough to say whether waterboarding, or any other technique, is torture, cruel treatment under Common Article 3, or otherwise unlawful. It&#8217;s really remarkable how far we have fallen when a jurist of Judge Mukasey&#8217;s caliber cannot answer such questions without hesitation.</p></blockquote> <p>Amazing. Whichever way he goes on this, clearly he ought to know enough about the law to come down on one side or the other. To be honest, I think he does, which makes this simply a political dodge.</p> "RIAA threatens 19 universities with lawsuits" https://inpropriapersona.com/news/2007/riaa-threatens-19-universities-with-lawsuits/ Thu, 18 Oct 2007 19:56:00 +0000 acf81bba24f12ff001a58e72f8716746 <p><a href="http://www.news.com/8301-10784_3-9799840-7.html?part=rss&amp;subj=news&amp;tag=2547-1_3-0-20">CNET &#8211; RIAA threatens 19 universities with lawsuits</a>:</p> <blockquote><p>Just in time to welcome many students back from fall break, the Recording Industry Association of America on Thursday dispatched a new round of &#8220;prelitigation&#8221; letters to 19 U.S. universities from coast to coast, alleging that campus networks are being used to commit copyright infringement.</p></blockquote> "Senate and Bush Agree On Terms of Spying Bill" https://inpropriapersona.com/articles/senate-and-bush-agree-on-terms-of-spying-bill/ Thu, 18 Oct 2007 17:43:00 +0000 eb8aef7a97b91caea0a8dd1645a36929 <p><a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/10/17/AR2007101702438.html?hpid=topnews">Washington Post &#8211; Senate and Bush Agree On Terms of Spying Bill</a>:</p> <blockquote><p>Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government&#8217;s domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources. Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers.</p> <p>It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.</p> <p>Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.</p> <p>Senate Democrats successfully pressed for a requirement that the Foreign Intelligence Surveillance Court review the government&#8217;s procedures for deciding who is to be the subject of warrantless surveillance. They also insisted that the legislation be renewed in six years, Democratic congressional officials said. </p></blockquote> <p>If the surveillance was truly <em>unconstitutional</em>, does Congress even possess the power to grant immunity? To do so might exceed their limited Constitutional authority. However, even if that&#8217;s true, this will make cases much, much harder to win.</p> "Cheney’s Law" https://inpropriapersona.com/news/2007/cheneys-law/ Thu, 18 Oct 2007 16:48:00 +0000 c7e93ec1075664050849b3fd54852140 <p><a href="http://www.pbs.org/wgbh/pages/frontline/cheney/etc/synopsis.html">PBS FRONTLINE &#8211; Cheney&#8217;s Law</a>:</p> <blockquote><p>For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy&mdash;without congressional approval or judicial review. Now, as the White House appears ready to ignore subpoenas in the investigations over wiretapping and U.S. attorney firings, FRONTLINE examines the battle over the power of the presidency and Cheney&#8217;s way of looking at the Constitution.</p></blockquote> <p>Sounds like a fascinating investigation of what may formerly have appeared a rather abstract Constitutional debate over the role of the executive branch, but is now central to the future of the United States and the world.</p> "On the Supreme Court, the Federal Circuit, and Patent Law" https://inpropriapersona.com/articles/on-the-supreme-court-the-federal-circuit-and-patent-law/ Thu, 18 Oct 2007 00:50:00 +0000 6ad29e6e05574e6f3c36a7e77be0ada9 <p>&nbsp;</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 75px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:US-CourtOfAppeals-FederalCircuit-Seal.svg"><img class="zemanta-img-configured" title="Seal of the United States Court of Appeals for..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/5/59/US-CourtOfAppeals-FederalCircuit-Seal.svg/300px-US-CourtOfAppeals-FederalCircuit-Seal.svg.png" alt="Seal of the United States Court of Appeals for..." width="75" height="75" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p><a href="http://web.archive.org/web/20090514073500/http://www.michiganlawreview.org:80/firstimpressions/vol106/patentlaw.htm">Michigan Law Review &#8211; An Online Symposiumon the Supreme Court, the Federal Circuit, and Patent Law</a>:</p> <blockquote><p>This symposium takes place against a backdrop of three recent Supreme Court decisions&#8211;KSR v. Teleflex, Microsoft v. AT&amp;T, and eBay v. MercExchange&#8211;</p> <p>affecting patent law. It asks whether these cases, considered together, represent a recent upheaval in patent law and redefine the relationship between the Federal Circuit and the Supreme Court, as some commentators have suggested.</p></blockquote> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=eee01448-f8bb-4028-8e6d-5f2b57c96589" alt="" /></div> "Verizon offers details on records releases" https://inpropriapersona.com/articles/verizon-offers-details-on-records-releases/ Wed, 17 Oct 2007 17:30:00 +0000 a004b9e1a9471a3dbaeaecd446543d5f <p><a href="http://www.cnn.com/2007/POLITICS/10/16/verizon.records/">CNN &#8211; Verizon offers details on records releases</a>: </p> <blockquote><p>Verizon Communications says it has provided federal, state and local law enforcement agencies tens of thousands of communication and business records relating to customers based on emergency requests without a court order or administrative subpoena.</p> <p>In an October 12 letter to members of the House Committee on Energy and Commerce, a senior Verizon official says that from 2005 through this September there were 63,700 such requests, and of those, 720 came from federal authorities.</p> <p>The emergency requests, however, were some of the more surprising data provided. Some of the emergency situations Verizon said it assisted in included locating the Internet address of a child predator who had abducted a 13-year-old girl (who was then found due to that information) and helping Immigration and Customs Enforcement agents track down a man using a webcam to broadcast the sexual abuse of a 6-year-old boy.</p></blockquote> <p>The number of requests is impressive, and indicative of the problem&mdash;63,700 requests with no court order or subpoena? That certainly suggests a potential lack of oversight, and a potential privacy problem. On the other hand, the specific stories provided on two requests (almost certainly picked for exactly this reason) shows the difficult balancing problem involved in regulating the potential privacy invasions: who could argue with stopping child predators? Of course, this may simple be a &#8220;straw man&#8221; argument, since there certainly exists a potential oversight solution that would still succeed in locating such people, while preserving oversight of the process.</p> "Questions for the A.G. Nominee" https://inpropriapersona.com/news/2007/questions-for-the-a-g-nominee/ Wed, 17 Oct 2007 16:40:00 +0000 bf4b2f68c16801aa53d143e7c822673b <p><a href="http://www.nytimes.com/2007/10/17/opinion/17mukasey-questions.html?_r=1&amp;oref=slogin">New York Times &#8211; Questions of Justice</a>: </p> <blockquote><p>Michael B. Mukasey, President Bush’s nominee for attorney general, appears today before the Senate Judiciary Committee. The Op-Ed page asked four legal experts to pose the questions they would like to hear Judge Mukasey answer.</p></blockquote> <p>One sample question:</p> <blockquote><p>1. Griffin Bell, attorney general under Jimmy Carter, once wrote of the “tension between the attorney general’s duty to define the legal limits of executive action in a neutral manner and the president’s desire to receive legal advice that helps him do what he wants.” How will you manage this tension?</p></blockquote> "Hundreds of New Documents Reveal Expanded Military Role in Domestic Surveillance" https://inpropriapersona.com/articles/hundreds-of-new-documents-reveal-expanded-military-role-in-domestic-surveillance/ Tue, 16 Oct 2007 21:32:00 +0000 d7195accaf6491fcc4bc28a79412480a <p><a href="http://web.archive.org/web/20091018042008/http://www.aclu.org/safefree/nationalsecurityletters/32145prs20071014.html">American Civil Liberties Union &#8211; Hundreds of New Documents Reveal Expanded Military Role in Domestic Surveillance</a>:</p> <blockquote><p>New documents uncovered as a result of an American Civil Liberties Union and New York Civil Liberties Union lawsuit reveal that the Department of Defense secretly issued hundreds of national security letters (NSLs) to obtain private and sensitive records of people within the United States without court approval. A comprehensive analysis of 455 NSLs issued after 9/11 shows that the Defense Department seems to have collaborated with the FBI to circumvent the law, may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests, according to the ACLU.</p></blockquote> <p>Note that all of the documents obtained by the ACLU are at: <a href="http://web.archive.org/web/20091018041926/http://www.aclu.org/safefree/nationalsecurityletters/32088res20071014.html">www.aclu.org/safefree/nationalsecurityletters/32088res20071014.html</a></p> "Comcast Charges $1K for a FISA Wiretap" https://inpropriapersona.com/articles/comcast-charges-1k-for-a-fisa-wiretap/ Tue, 16 Oct 2007 21:22:00 +0000 2b4816e6658e7fab01f44dd542a0629a <p><a href="http://www.fas.org/blog/secrecy/2007/10/implementing_domestic_intellig.html">Secrecy News &#8211; Implementing Domestic Intelligence Surveillance</a>: </p> <blockquote><p>Upon lawful request and for a thousand dollars, Comcast, one of the nation&#8217;s leading telecommunications companies, will intercept its customers&#8217; communications under the Foreign Intelligence Surveillance Act.</p> <p>The cost for performing any FISA surveillance &#8220;requiring deployment of an intercept device&#8221; is $1,000.00 for the &#8220;initial start-up fee (including the first month of intercept service),&#8221; according to a newly disclosed Comcast <a href="http://www.fas.org/blog/secrecy/docs/handbook.pdf">Handbook for Law Enforcement</a> (pdf).</p> <p>Thereafter, the surveillance fee goes down to &#8220;$750.00 per month for each subsequent month in which the original [FISA] order or any extensions of the original order are active.&#8221;</p></blockquote> <p>I wonder how much that corresponds to Comcast&#8217;s actual costs? It doesn&#8217;t seem to out of line to me in terms of cost, but it is interesting to see politically-charged policy matters reduced to specific dollar amounts!</p> "EFF Documents Detail Pentagon Demands for Financial Records" https://inpropriapersona.com/articles/eff-documents-detail-pentagon-demands-for-financial-records/ Tue, 16 Oct 2007 17:44:00 +0000 9ca4373917cf46a77c8fb6b43ba3728d <p><a href="http://eff.org/deeplinks/2007/10/eff-documents-detail-pentagon-demands-financial-records">Electronic Frontier Foundation &#8211; EFF Documents Detail Pentagon Demands for Financial Records</a>:</p> <blockquote><p>The problems at the Pentagon that are described in the documents appear to mirror some of those confronted by the F.B.I., where an internal investigation this year into the bureau’s use of thousands of national security letters found widespread problems and little oversight in the way the demands for records were issued.</p></blockquote> "FCC Considers New Technology Mandates, Threatening Innovation and Privacy" https://inpropriapersona.com/articles/fcc-considers-new-technology-mandates-threatening-innovation-and-privacy/ Tue, 16 Oct 2007 17:42:00 +0000 c9981b5d3779fddc6343bbb7460c6cec <p><a href="http://web.archive.org/web/20081128024244/http://www.cdt.org/publications/policyposts/2007/12">CDT &#8211; FCC Considers New Technology Mandates, Threatening Innovation and Privacy</a>:</p> <blockquote><p>The Federal Communications Commission (FCC) is actively considering whether to adopt technology mandates that have the potential to significantly harm innovation and privacy on the Internet. Two ongoing proceedings&mdash;one involving a small part of the ongoing Communications Assistance for Law Enforcement Act (CALEA) saga and one concerning E91&mdash;illustrate the danger.</p> <p>The Internet was not the primary target of either proceeding, but Internet and IP-based services would likely be squarely impacted by adverse FCC rules. In the CALEA proceeding, the FBI targeted a specific standard for wiretaps in the wireless telephone context, but the FBI made clear that it thought that whatever rules applied to wireless should apply also to wiretaps of broadband Internet access.</p></blockquote> "An Interesting Peek Into a Lawyer’s Withdrawal From a Case" https://inpropriapersona.com/articles/an-interesting-peek-into-a-lawyers-withdrawal-from-a-case/ Tue, 16 Oct 2007 17:36:00 +0000 a79df873d164305704bdc1d83e27fb5b <p><a href="http://blogs.wsj.com/law/2007/10/16/an-interesting-peak-into-a-lawyers-withdrawal-from-a-case/">WSJ Law Blog &#8211; An Interesting Peek Into a Lawyer&#8217;s Withdrawal From a Case</a>:</p> <blockquote><p>It&#8217;s not too often that we get a peek inside the sausage factory called How a Lawyer Withdraws From a Case. Thanks to the Chicago Tribune, here&#8217;s a glimpse into a rather noisy exit.</p></blockquote> "Should AT&T be held legally responsible for any NSA cooperation?" https://inpropriapersona.com/articles/should-att-be-held-legally-responsible-for-any-nsa-cooperation/ Fri, 12 Oct 2007 05:11:00 +0000 4b08550890d8d199ad82aa85ef2f501b <p><a href="http://www.news.com/8301-13578_3-9796284-38.html">The Iconoclast &#8211; CNET News.com &#8211; Should AT&amp;T be held legally responsible for any NSA cooperation?</a>:</p> <blockquote><p> This is a fine example of McCullagh&#8217;s Law in action: Unless you vote my way, Americans will die. (Is the Bush administration really serious about this, by the way? Do they think that gun-toting privacy activists will start kidnapping or shooting AT&amp;T network technicians?)</p></blockquote> "Will Starbucks Wi-Fi soon be free?" https://inpropriapersona.com/articles/will-starbucks-wi-fi-soon-be-free/ Thu, 11 Oct 2007 17:23:00 +0000 691f7e4168d2befdc8825b005832200e <p><a href="http://www.computerworld.com/action/article.do?command=viewArticleBasic&amp;articleId=9042179&amp;source=rss_news10">Computerworld &#8211; Prediction: Starbucks Wi-Fi will soon be free</a>: </p> <blockquote><p>When Starbucks introduced for-pay Wi-Fi in 2002, it seemed like a great deal (especially for business customers who could expense it). But five years later, the model appears old and stale and ready for a complete overhaul. Prediction: Starbucks will start rolling out free Wi-Fi access within one year.</p></blockquote> <p>I wish. This seems to me like a no-brainer from the Starbucks perspective, but then again, I&#8217;ve been saying that since they first introduced it (it never really seemed like a &#8220;great deal&#8221; to me, even at the time&mdash;then again, I never could expense it&#8230;)</p> <p>As I&#8217;ve written <a href="https://inpropriapersona.com/2007/07/why-provide-free-wifi.html">before</a>, I think free Wi-Fi makes good business sense: it brings in customers and makes them happy. (Caveat: this doesn&#8217;t necessarily mean a free-for-all. It makes perfect sense to me to give limited-time coupons with a purchase, for example. But the point is to get customers in to your store with a relatively minimum investment.)</p> <p>The Computerworld article suggests that Starbucks is competing with McDonalds, which has started rolling out free Wi-Fi. Perhaps, although personally, I would never choose between Starbucks and McDonalds on the basis of Wi-Fi access. I just don&#8217;t think they have the same target market, at least, not for anyone I know. Then again, the article suggests that increasing access via mobile devices like iPhones might be shaking this up, and that might well be true, as those devices have a completely different usage pattern (I imagine, though I don&#8217;t know that this has yet been proven) than laptops.</p> <p>Regardless of the motivation, I might actually consider going to a Starbucks on occasion if they offered free (or even reasonably priced) Wi-Fi. (Or perhaps that would simply encourage more independents to offer Wi-Fi, something that&#8217;s been shockingly lacking in San Francisco, especially as compared to Seattle, for example).</p> "How to say no to the President? (Medellin v. Texas)" https://inpropriapersona.com/articles/how-to-say-no-to-the-president-medellin-v-texas/ Thu, 11 Oct 2007 17:03:00 +0000 231d39b6e54a1c1b79fe2c7d365b3c85 <p><a href="http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/">SCOTUSblog &#8211; How to say no to the President?</a></p> <blockquote><p>The Supreme Court, deeply fascinated with its own role in an interconnected world legal order, spent extra time on Wednesday examining the question of how to say no to the President on a treaty matter and, if it does, to do so without harming the Chief Executive’s power to speak for the nation in the global community. It was apparent that, if the case of <a href="http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-984.pdf"><i>Medellin v. Texas</i></a> (06-984) had come to the Court without presidential involvement, it would have been easy to decide&mdash;in fact, the issue in that context may already have been effectively decided last year. But President Bush put his authority at the very center of it, and heavy complications have followed. The Justices’ keen interest in those complications led Chief Justice John G. Roberts, Jr., to let the scheduled one-hour hearing Wednesday run on for an added 26 minutes&mdash;an especially rare gesture.</p></blockquote> "Royal Canadian Mint Owns the Penny" https://inpropriapersona.com/news/2007/royal-canadian-mint-owns-the-penny/ Tue, 09 Oct 2007 22:43:00 +0000 c116bab809d3981486a821272d0ea2d2 "Licensing of Child Location Services Bill" https://inpropriapersona.com/articles/licensing-of-child-location-services-bill/ Mon, 08 Oct 2007 02:59:00 +0000 561affaf728a054fb2d055c8e8a10f18 <p><a href="http://p10.hostingprod.com/@spyblog.org.uk/blog/2007/10/licensing_of_child_location_services_bill.html">Spy Blog &#8211; Licensing of Child Location Services Bill&mdash;does it also apply to tracking vehicles driven by 17 year olds?</a>:</p> <blockquote><p>The Bill seems to have the right sort of intent, but it could pose serious conflicting legal problems for the police, the primary telecommunications network providers and the third party Location Based Services companies, in how it might interact with the existing mess of the Regulation of Investigatory Powers Act, the Data protection Act and Ofcom regulations, and possibly even international trade restriction laws.</p></blockquote> "Companies Pitch Flextime as Macho" https://inpropriapersona.com/articles/companies-pitch-flextime-as-macho/ Mon, 08 Oct 2007 02:26:00 +0000 74f2dc733d0f004a1a31560449f06627 <p>An older article from December of 2006, but an interesting look at what some large firms are doing to try and retain their work force. <a href="http://online.wsj.com/article/SB116580211197146137.html">WSJ.com &#8211; Companies Pitch Flextime as Macho</a>:</p> <blockquote><p>Here&#8217;s a novel approach to keeping women in the work force: Focus on men.</p> <p>Some employers are trying to overcome a perceived stigma on flexible work schedules—often viewed as a concession to women—by redefining the issue as a quality-of-life concern for everyone. The approach is gaining traction, especially in the male-dominated financial-services sector, where employers have long struggled to retain and promote women.</p> <p>Among the techniques companies are testing: highlighting successful men who have tapped flexible work arrangements; encouraging more employees to work from home part of the time; and promoting alternative career paths.</p> <p>Many of the ideas aren&#8217;t new, but it&#8217;s the first time they have been aggressively pitched to men. Encouraging men to consider flexible work arrangements is a way of &#8220;making it legitimate,&#8221; says Sylvia Ann Hewlett, president of the Center for Work-Life Policy, a New York research and advocacy group. </p></blockquote> <p><span style="font-style:italic;">Note: Link to article has been revised due to changes at the WSJ site</span> <span style="font-style:italic;">(May 13, 2008)</span>.</p> "Should we study Kelsen?" https://inpropriapersona.com/articles/should-we-study-kelsen/ Sat, 06 Oct 2007 18:25:00 +0000 f76e503ceabd98db18f4db7b6c092cde <p><a href="http://www.amazon.com/gp/product/0198763158/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0198763158&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=QTGWXG2WRWVIDF5P"><img class="alignright" src="https://ws-na.amazon-adsystem.com/widgets/q?_encoding=UTF8&amp;ASIN=0198763158&amp;Format=_SL250_&amp;ID=AsinImage&amp;MarketPlace=US&amp;ServiceVersion=20070822&amp;WS=1&amp;tag=commentinprop-20" alt="" border="0" /></a>Quite honestly, I had never heard of <a title="Hans Kelsen" href="http://en.wikipedia.org/wiki/Hans_Kelsen" rel="wikipedia">Kelsen</a> before. Perhaps this is unsurprising, considering the almost complete lack of theory in the law school curriculum. I also never encountered him in my studies of history, philosophy or literary theory, but then again, I&#8217;m hardly a specialist in such matters. So I found the following discourse interesting as a pointer to a new (for me) area of legal studies.</p> <p><a href="http://lsolum.typepad.com/legaltheory/2007/10/should-we-study.html">Legal Theory Blog &#8211; Should we study Kelsen?</a>:</p> <blockquote><p>On the first question, it seems to me clear that competent philosophers of law need (at a minimum) a basic acquaintance with Kelsen&#8217;s theory. One place to start would be Green&#8217;s paper (cited above), but an even better starting point would be Stanley Paulson&#8217;s Introduction to <a href="http://www.amazon.com/gp/product/0198763158/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0198763158&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=QTGWXG2WRWVIDF5P">Normativity and Norms: Critical Perspectives on Kelsenian Themes</a>, a magnificient anthology now sadly out of print (but still available via the link at Amazon.com). I assume that no one would seriously dispute this point, because of Kelsen&#8217;s importance in the history of legal philosophy&#8211;significant even in the Anglophone Hart-Dworkin-Raz-Finnis tradition and enormous in continental philosophy of law. (A similar point could be made about the more recent work of Niklas Luhmann, e.g., his <a href="http://books.google.com/books?id=0Ky_GPUMtpUC&amp;dq=Niklas+Luhmann&amp;prev=http://www.google.com/search%3Fhl%3Den%26q%3DLuhmann&amp;sa=X&amp;oi=print&amp;ct=result&amp;cd=1">Law as a Social System</a>.)</p></blockquote> <p>On the second question, I think that anyone who works on the what-is-law, what-are-the-necessary-qualities-of-law, nature-of-law debate should have a basic familiarity with Kelsen&#8217;s work in translation, e.g., with <a href="http://www.amazon.com/Pure-Theory-Law-Hans-Kelsen/dp/1584775785/ref=pd_bbs_sr_1/102-7427557-8886545?ie=UTF8&amp;s=books&amp;qid=1191603698&amp;sr=8-1">Pure Theory of Law</a> and <a href="http://www.amazon.com/General-Theory-State-Hans-Kelsen/dp/1584777176/ref=pd_bbs_sr_2/102-7427557-8886545?ie=UTF8&amp;s=books&amp;qid=1191603698&amp;sr=8-2">General Theory of Law And State</a>. Basic familiarity is not mastery. Because Kelsen&#8217;s writing is abstract, complex, and frequently obscure, mastery would come at a high cost&#8211;in my opinion, only through careful study of Kelsen in the original German. (Yes, I really mean this. Quite obviously, anyone who writes a dissertation on Kelsen should read him in German.)</p> <p><a href="http://prawfsblawg.blogs.com/prawfsblawg/2007/10/why-no-kelsen.html">PrawfsBlawg &#8211; Why No Kelsen?</a>:</p> <blockquote><p>So what gives? What is there about Kelsen that Americans don&#8217;t like?</p> <p>The problem, I think, is that Kelsen/s approach runs against the two dominant trends in American philosophy of law. Most Americans look at law and legal systems empirically&#8211;as fundamentally involving questions of social facts. The competing view, represented by Dworkin and Finnis, considers legal facts to be, at least in part, moral facts.</p> <p>Kelsen rejected both views. For him, the law was neither empirical nor moral. The best analogy I can think of is the way many philosophers talk about language. A language correlates certain physical things (e.g. strings of letters or phonemes) with linguistic meanings. For example, &#8220;Es regnet&#8221; means it rains in German (but nothing in English). For Kelsen, legal systems correlate certain social events (people raising their hands in a room) with legal meanings (a statute being enacted). And just as many philosophers consider linguistic meanings to be abstract objects&#8211;neither empirical nor moral&#8211;Kelsen thought the same thing was true of legal meanings.</p></blockquote> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=dd3215e8-3bfe-425e-bc00-6b44b4c2e36f" alt="" /></div> "Tinkering with Billable-Hour Requirements" https://inpropriapersona.com/articles/tinkering-with-billable-hour-requirements/ Thu, 04 Oct 2007 22:40:00 +0000 dac246f6496b02bc0456b6a031cc7beb <p><a href="http://blogs.wsj.com/law/2007/10/04/tinkering-with-billable-hour-requirements/">WSJ Law Blog &#8211; Tinkering with Billable-Hour Requirements</a>:</p> <blockquote><p>In the perpetual race to recruit new attorneys from top law schools, mid-tier firms are feeling squeezed. The biggest firms recently increased starting salaries for first-year associates to as high as $160,000, and they&#8217;re recruiting more and more attorneys each year. So what&#8217;s a mid-tier firm to do? At least three firms, none of which have matched the big-firm base-pay increases, have taken aim at a staple of big-firm life that&#8217;s long been an object of derision for big-firm associates: the expectation that they bill at least 2,000 hours a year to stay on a partnership track.</p></blockquote> "ACLU appeals domestic wiretap challenge to US Supreme Court" https://inpropriapersona.com/articles/aclu-appeals-domestic-wiretap-challenge-to-us-supreme-court/ Thu, 04 Oct 2007 03:06:00 +0000 b1e0d8e00332c22e2e18d1b5079be229 <p><a href="http://web.archive.org/web/20140419053503/http://jurist.law.pitt.edu/paperchase/2007/10/aclu-appeals-domestic-wiretap-challenge.php">JURIST &#8211; ACLU appeals domestic wiretap challenge to US Supreme Court</a>:</p> <blockquote><p>The American Civil Liberties Union (ACLU) filed a certiorari petition Wednesday asking the US Supreme Court to hear a challenge of the government&#8217;s domestic surveillance program that was rejected by the US Sixth Circuit Court of Appeals in July.</p></blockquote> "Is the Golden Age of Patent Litigation Coming To an End?" https://inpropriapersona.com/articles/is-the-golden-age-of-patent-litigation-coming-to-an-end/ Wed, 03 Oct 2007 01:25:00 +0000 ff655b5b4fa1e96970279bbf2a4cdc74 <p><a href="http://blogs.wsj.com/law/2007/10/02/is-the-golden-age-of-patent-litigation-coming-to-an-end/">WSJ Law Blog &#8211; Is the Golden Age of Patent Litigation Coming To an End?</a></p> <blockquote><p>That&#8217;s the weighty question keeping us up last night as we contemplated <span style="font-style:italic;">In Re Stephen Comiskey</span>, the latest in a string of rulings that has chipped away at patent holders’ rights and reflects the growing concern over the patent-litigation boom. (Click <a href="http://www.fedcir.gov/opinions/06-1286.pdf">here</a> for the <a href="http://web.archive.org/web/20070930172138/http://www.fedcir.gov:80/">Federal Circuit</a> ruling and the <a href="http://online.wsj.com/public/resources/documents/comiskey.pdf">oral argument</a> in the case.)</p> <p>Legal experts say the court&#8217;s ruling in <span style="font-style:italic;">Comiskey</span> may make it more difficult to obtain and enforce business-method patents, which are granted for abstract processes rather than specific devices. Lawyers also say the decision could help financial-services and software companies facing a barrage of patent-infringement litigation brought by patent holders.</p> <p>The decision suggests that business-method patents will now be considered invalid unless the invention has a practical application and can be linked to a particular technology, such as a computer. The court said that &#8220;mental processes—or processes of human thinking—standing alone aren’t patentable even if they have practical application.&#8221;</p></blockquote> "EEOC Accuses Bloomberg LP Of Flunking Pregnancy Test" https://inpropriapersona.com/news/2007/eeoc-accuses-bloomberg-lp-of-flunking-pregnancy-test/ Mon, 01 Oct 2007 16:53:00 +0000 88912b280b55d065d3f0a5a3fa8305ab <p><a href="http://blogs.wsj.com/law/2007/09/28/eeoc-accuses-bloomberg-lp-of-flunking-pregnancy-test/">WSJ Law Blog &#8211; EEOC Accuses Bloomberg LP Of Flunking Pregnancy Test</a>: </p> <blockquote><p>Bloomberg, the media company not the mayor, was sued yesterday by the EEOC for allegedly engaging in a pattern of discrimination against women who became pregnant and took maternity leave. In a lawsuit filed in federal court in Manhattan, the EEOC alleged the company demoted and reduced the pay of three women after they announced they were pregnant. A Bloomberg spokeswoman said the allegations &#8220;are without merit.&#8221; Here’s the <a href="http://online.wsj.com/article/SB119091445409241491.html">WSJ story</a>.</p></blockquote> "CanLII - Canadian Legal Information Institute" https://inpropriapersona.com/articles/canlii-canadian-legal-information-institute/ Sun, 30 Sep 2007 23:50:00 +0000 2131f61a10db6166e73cd74ce54b4dbc <p>I am very impressed by <a href="http://www.canlii.org/en/">CanLII &#8211; Canadian Legal Information Institute</a> search service: &#8220;CanLII is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII&#8217;s goal is to make Canadian law accessible for free on the Internet.&#8221; The service is similar to the U.S.-centric Westlaw or Lexis-Nexis, although limited to only Canadian judicial decisions (Westlaw and Lexis-Nexis offer a <a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RwA281g6dsI/AAAAAAAAAHA/pYoB3ncTaS4/s1600-h/Picture+1.png"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RwA281g6dsI/AAAAAAAAAHA/pYoB3ncTaS4/s200/Picture+1.png" alt="" border="0" /></a>great deal in addition to just case law). However, it&#8217;s free, very well done, and very useful.</p> <p>The interface is refreshingly simple, and makes excellent use of AJAX-style coding to switch between French and English, for example, as well as to provide quick access to the &#8220;Reflex Record,&#8221; which shows &#8220;noteup and cited decisions.&#8221; This is rather like Sheperdizing in the U.S., combined with a useful list of citations found within the case. Decisions are available both in PDF and HTML formats, and in both French and English (it&#8217;s rather fun to read cases <span style="font-style:italic;">en français</span>). Searching is based on a streamlined interface that feels quite different than the clunky Westlaw and Lexis-Nexis search screens.</p> <p>CanLII also offers <a href="http://www.canlii.org/en/rss.html">RSS feeds</a> of Canadian courts and tribunals, so you can keep up on the latest decisions. (Also free.) Nice! It could be made even better if there was a mechanism for accessing RSS feeds by <span style="font-style:italic;">topic</span> as well as jurisdiction, but that&#8217;s a minor quibble.</p> <p>Overall, as a U.S. law student looking into Canadian law for the first time, I&#8217;m impressed!</p> "The Right to Bear Ar-, Or Is It Access the Internet?" https://inpropriapersona.com/articles/the-right-to-bear-ar-or-is-it-access-the-internet/ Sat, 29 Sep 2007 21:29:00 +0000 2a119842440ec5ea735ff62f8147ff56 <p><a href="http://www.concurringopinions.com/archives/2007/09/the_right_to_be.html">The Right to Bear Ar&#8211;, Or Is It Access the Internet?</a>:</p> <blockquote><p>All of these events [in Burma a.k.a. Myanmar] make we wonder whether the Bill of Rights would explicitly state that there is a right to free access and distribution of information over the Internet had the American Revolution occurred today. Now before everyone gets into a dither about the nature of the free press and what the First Amendment encompasses, I am suggesting that the situation described above shows the precarious nature of sharing information given the choke-points in place today. In other words, it seems that the benefits of technology also offer a much easier way to clamp down on society. Many have made this observation in the privacy context. Neil Richards&#8217;s post about the First Amendment gets to this point as well. We must consider what is at stake in today&#8217;s context. Put differently, could it be that the individual&#8217;s ability to access and use the Internet is now one of the key ways individuals serve to balance the power of the state?</p></blockquote> "Fewer women are seeking law degrees" https://inpropriapersona.com/news/2007/fewer-women-are-seeking-law-degrees/ Fri, 28 Sep 2007 18:13:00 +0000 48622e3af2fe36ddca7f3a4251dc7c6d <p><a href="http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1190883786035">NLJ &#8211; Fewer women are seeking law degrees </a>:</p> <blockquote><p>Now an analyst at Morgan Stanley in New York, Dadd, 22, went so far as to take a prep course for the Law School Admission Test before she decided that pursuing a juris doctor degree was not the right move for her. &#8216;It was something I was always interested in, but women are getting more opportunities outside of law school,&#8217; she said. Like Dadd, more women are forgoing a law degree. Since 2002, the percent of women in law schools has declined each year, according to the American Bar Association (ABA). Five years ago, women made up 49% of law school enrollment. This year, 46.9% of law school students are women. And while the number of applicants overall has dropped in the last two years, the percentage decline in the number of women has been greater. Although observers say a variety of factors contribute to the dip, the prevailing message is that fewer women want a lawyer&#8217;s life. </p></blockquote> "Why the Verizon/NARAL flap matters" https://inpropriapersona.com/articles/why-the-verizonnaral-flap-matters/ Fri, 28 Sep 2007 18:12:00 +0000 0a77564e25539401bf10c3e4541019cc <p><a href="http://scrawford.blogware.com/blog/_archives/2007/9/28/3258382.html">Susan Crawford blog &#8211; The big picture: Why the Verizon/NARAL flap matters</a>: </p> <blockquote><p>We have to decide what model for communications regulation we want. Do we want the carriers to decide what we do online, or do we want the carriers just to be carriers? &#8216;Online,&#8217; &#8216;cell phone,&#8217; &#8216;telephone,&#8217; and &#8216;cable&#8217; all feel the same to the consumer. It&#8217;s all just data traveling fast. The regulatory reluctance of the FCC and the weirdly out-of-date structure of the Communications Act are allowing for differential treatment of the same kinds of transactions&mdash;the FCC knows this, and so it is strongly leaning in the deregulatory direction. &#8216;We&#8217;ll treat everything the same way and everything will be a private network. The market will be victorious!&#8217; But as a matter of social policy and our own future, we should sharply question that direction. We don&#8217;t have enough competition or enough enlightened, nondiscriminatory communications companies to allow us to be confident that the market will be able to do anything. We should move back towards common carriage for telecommunications&mdash;which will require that control over transport be separated from content.</p></blockquote> "Judge Rules Parts Of Patriot Act Unconstitutional" https://inpropriapersona.com/articles/judge-rules-parts-of-patriot-act-unconstitutional/ Thu, 27 Sep 2007 23:56:00 +0000 2bdee4bbf13af65bcd3af0e6c8dd175f <p><a href="http://web.archive.org/web/20071111172909/http://cbs5.com:80/breakingnewsalerts/local_story_269191331.html">cbs5.com &#8211; Judge Rules Parts Of Patriot Act Unconstitutional</a>:</p> <blockquote><p>(AP) PORTLAND, Ore. A federal judge ruled Wednesday that two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause. U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, &#8216;now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.&#8217;</p></blockquote> "Justice Dept.’s warrantless eavesdropping rejected" https://inpropriapersona.com/articles/justice-dept-s-warrantless-eavesdropping-rejected/ Thu, 27 Sep 2007 00:41:00 +0000 30068b3da50013769df464a66fb69abc <p><a href="http://www.news.com/Police-Blotter-Justice-Dept.s-warrantless-eavesdropping-rejected/2100-1036_3-6210080.html?tag=nefd.lede">Justice Dept.&#8217;s warrantless eavesdropping rejected</a>:</p> <blockquote><p>The U.S. Department of Justice asserts it doesn&#8217;t need to obtain a wiretap court order to listen to which touch tones are pressed when people are on the phone. . . . At issue in this case is not whether the FBI can legally eavesdrop on a telephone conversation between two Americans. It can&mdash;if it obtains a wiretap order from a judge. . . . In last week&#8217;s opinion, Azrack said both federal law and the Fourth Amendment require her to reject prosecutors&#8217; request: &#8220;Despite the investigative benefit which would come from access to all PCTDD, the government cannot bootstrap the content of communications, protected by the Fourth Amendment, into the grasp of a device authorized only to collect call-identifying information. Until the government can separate PCTDD that do not contain content from those that do, pen register authorization is insufficient for the government to obtain any PCTDD.&#8221;</p> <p>Translation: Get a proper <a href="http://web.archive.org/web/20090811090427/http://www.usdoj.gov:80/criminal/cybercrime/usamarch2001_2.htm">wiretap order</a>.</p> </blockquote> "DOJ cuts off Guantanamo lawyer access after federal court ruling" https://inpropriapersona.com/news/2007/doj-cuts-off-guantanamo-lawyer-access-after-federal-court-ruling/ Sun, 23 Sep 2007 18:10:00 +0000 41cde7dc9d0df24a3f502cc32eb1bc69 <p><a href="http://web.archive.org/web/20130601233634/http://jurist.law.pitt.edu:80/paperchase/2007/09/doj-cuts-off-guantanamo-lawyer-access.php"> JURIST &#8211; DOJ cuts off Guantanamo lawyer access after federal court ruling</a>:</p> <blockquote><p>A US Department of Justice lawyer has informed lawyers representing some 40 detainees at Guantanamo Bay that they will no longer be able to visit with or send written communications to their clients.</p></blockquote> "Software Freedom Law Center Files GPL Lawsuit" https://inpropriapersona.com/articles/software-freedom-law-center-files-gpl-lawsuit/ Fri, 21 Sep 2007 21:51:00 +0000 817d66e604eb606be5cf5c76af69688e <p><a href="http://www.softwarefreedom.org/news/2007/sep/20/busybox/">On Behalf of BusyBox Developers, SFLC Files First Ever U.S. GPL Violation Lawsuit</a>:</p> <blockquote><p>The Software Freedom Law Center (SFLC) today announced that it has filed the first ever U.S. copyright infringement lawsuit based on a violation of the GNU General Public License (GPL) on behalf of its clients, two principal developers of BusyBox, against Monsoon Multimedia, Inc. BusyBox is a lightweight set of standard Unix utilities commonly used in embedded systems and is open source software licensed under GPL version 2.</p></blockquote> "Surveillance Law Must Protect Privacy and Security - Testimony" https://inpropriapersona.com/articles/surveillance-law-must-protect-privacy-and-security-testimony/ Wed, 19 Sep 2007 18:13:00 +0000 6ffa4dce9111c0f3f87f5b63fc6e7231 <p><a href="http://web.archive.org/web/20081127073418/http://www.cdt.org/headlines/1045">Surveillance Law Must Protect Privacy and Security &#8211; Testimony:</a></p> <blockquote><p>Congress can enact legislation that meets the needs of intelligence agencies for defending national security, while still protecting the fundamental privacy rights of innocent Americans, CDT Policy Director Jim Dempsey told a congressional panel today. In testimony before the House Intelligence Committee, Dempsey identified a balanced approach that Congress could use to replace the overreaching Protect America Act, which was adopted last month and expires next year. CDT also today released a memo addressing the poorly understood concept of &#8220;minimization&#8221; in the surveillance context.</p></blockquote> <ul> <li><a href="http://www.cdt.org/security/20070918dempsey-testimony.pdf">Dempsey Testimony</a> [PDF] September 18, 2007  <li><a href="http://www.cdt.org/security/20070917mimization-memo.pdf">Minimization Memo</a> [PDF] September 18, 2007 </ul> "So Why Hasn’t Critical Theory Worked in Law?" https://inpropriapersona.com/articles/so-why-hasnt-critical-theory-worked-in-law/ Sun, 16 Sep 2007 04:14:00 +0000 64f1ca925cbde46cf6a2a49ddb504622 <p>I <a href="https://inpropriapersona.com/2007/09/useful-introductions-to-theory.html">wondered previously</a> why <a href="http://en.wikipedia.org/wiki/Critical_theory">critical theory</a> approaches (like the much-criticized <a href="http://www.law.cornell.edu/wex/index.php/Critical_legal_theory">Critical Legal Studies</a>) haven&#8217;t had much of an impact on U.S. law or legal analysis.</p> <p>Maybe &#8220;<a href="http://en.wikipedia.org/wiki/Literary_theory">litcrit</a>&#8221; has relied too much on the fabled &#8220;<a href="http://en.wikipedia.org/wiki/Death_of_the_Author">Death of the Author</a>&#8221; (even without realizing it) when trying to analyze case law. If your &#8220;author&#8221; keeps popping back up to correct your understanding, it&#8217;s much harder to wander off into a analyzing binary dichotomies of meaning (<span style="font-style:italic;">à la </span><a href="http://en.wikipedia.org/wiki/Claude_Levi-Strauss">Lévi-Strauss</a>) since that damn author/judge/court keeps trying to nail down their/your <a href="http://en.wikipedia.org/wiki/Sign_%28semiotics%29">signifieds</a>.</p> <p>Or perhaps the law has yet to discover/be discovered by literary criticism, and simply got hung up on the oh-so-last-century <a href="http://en.wikipedia.org/wiki/Positivism">positivist</a> <a href="http://en.wikipedia.org/wiki/Frankfurt_School">Frankfurt School</a> approach of <a href="http://en.wikipedia.org/wiki/Critical_theory_%28Frankfurt_School%29">critical theory</a>, whose final implications have simply been too radical to carry into the classroom for the conservative and establishmentarian legal world (nonetheless, it seems <a href="http://plato.stanford.edu/entries/legal-positivism/">legal positivism</a> remains perhaps the dominant approach when legal scholars are forced to wax philosophical).</p> <p>Possibly the litcrit approach feels too <a href="http://en.wikipedia.org/wiki/Continental_philosophy">Continental</a> in flavor, more suited to a <a href="http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29">civil law</a> view of the world. But I think leaving it there would be a shame: the <a href="http://en.wikipedia.org/wiki/Common_law">common law</a> looks to me to be a perfectly fascinating cultural <a href="http://en.wikipedia.org/wiki/Narrative">narrative</a>, full of symbolic meaning and dialectical relationships, perfectly suited to the complex tools developed by those perhaps more used to dining on <a href="http://en.wikipedia.org/wiki/Soren_Kierkegaard">Kierkegaard</a> and <a href="http://en.wikipedia.org/wiki/Jane_Austen">Austin</a> than <a href="http://www.becker-posner-blog.com/">Posner</a> and <a href="http://en.wikipedia.org/wiki/Benjamin_N._Cardozo">Cardozo</a>.</p> <p>Those of us in law school often view the law as central to our society. Without the law, we would not be a nation. Quite true, I think, in its way. But is it not, well, <span style="font-style:italic;">interesting</span> to also say that there is never any true center to a culture—that the entire construction is so interwoven and so self-referential that beginnings, endings, margins and centers, are places which are impossible to finally nail down. So then, to continue down this path, <a href="http://en.wikipedia.org/wiki/Jacques_Derrida">Jacques Derrida</a> says (in &#8220;<a href="http://web.archive.org/web/20090129234051/http://hydra.umn.edu:80/derrida/sign-play.html">Structure, Sign, and Play in the Discourse of the Human Sciences</a>&#8220;),</p> <blockquote><p>it was necessary to begin thinking that there was no center, that the center could not be thought in the form of a present-being, that the center had no natural site, that it was not a fixed locus, but a function, a sort of nonlocus in which an infinite number of sign-substitutions come into play. . . . This was the moment when . . . everything became discourse—provided we can agree on this word—that is to say, a system in which the central signified, the original or transcendental signified, is never absolutely present outside a system of differences. The absence of the transcendental signified extends the domain and the play of signification infinitely.</p></blockquote> <p>There. Isn&#8217;t that a fun way to <span style="font-style:italic;">start</span> thinking, just for a bit?</p> "Useful Introductions to Theory" https://inpropriapersona.com/articles/useful-introductions-to-theory/ Sat, 15 Sep 2007 23:33:00 +0000 653be179186b864daef1fd3a885c3f5c <p>The &#8220;<a href="http://www.cla.purdue.edu/academic/engl/theory/">Introductory Guide to Critical Theory</a>&#8221; (which I extract from and link to below, along with other useful reference sites) provides an excellent basic introduction to some of the main points of contemporary critical theory (which I encountered as part of <a href="http://www.chid.org/">historical</a>, <a href="http://web.archive.org/web/20130127071610/http://depts.washington.edu/complit/">literary</a> and <a href="http://web.archive.org/web/20130203094658/http://depts.washington.edu:80/texts/">&#8220;textual&#8221; studies</a>). It has amazed me so far in law school that these theories have made barely a dent on the scholarship or teaching of law, despite the purported existence of so-called &#8220;<a href="http://en.wikipedia.org/wiki/Critical_legal_studies">Critical Legal Studies</a>.&#8221; Not that people aren&#8217;t applying them; merely that they are non-existent in the classroom.</p> <p>Reading through this introduction has helped remind me of the value of these theoretical approaches, and so I am sharing snippets here to hopefully spark some future scholarship (on my part, on anyone&#8217;s part) in applying these theoretical approaches to the law.</p> <p><a href="http://www.cla.purdue.edu/academic/engl/theory/genderandsex/"><span style="font-weight: bold;">Gender and Sex</span></a></p> <blockquote><p>[S]ex and gender theorists can be divided into various sub-schools that bring together the insights of disparate approaches (eg. materialist feminists, Foucauldian theorists of gender, postmodern and poststructuralist theorists of gender, and psychoanalytical feminists; psychoanalytical feminists can, in turn, be divided among Freudian, Lacanian, and Kristevan thinkers).</p></blockquote> <p>Players include: <a href="http://plato.stanford.edu/entries/foucault/">MICHEL FOUCAULT</a>, <a href="http://en.wikipedia.org/wiki/Judith_Butler">JUDITH BUTLER</a>.</p> <p><a href="http://www.cla.purdue.edu/academic/engl/theory/marxism"><span style="font-weight: bold;">Marxism</span></a></p> <blockquote><p>The major distinction in Marxist thought that influences literary and cultural theory is that between traditional Marxists (sometimes, unfairly, called vulgar Marxists) and what are sometimes referred to as post-Marxists or neo-Marxists. The major distinction between these two versions of Marxist thought lies in the concept of ideology: traditional Marxists tend to believe that it is possible to get past ideology in an effort to reach some essential truth (eg. the stages of economic development). Post-Marxists, especially after Louis Althusser, tend to think of ideology in a way more akin to Jacques Lacan, as something that is so much a part of our culture and mental make-up that it actively determines what we commonly refer to as &#8220;reality.&#8221;</p></blockquote> <p>Players include: <a href="http://plato.stanford.edu/entries/marx/">KARL MARX</a>, <a href="http://en.wikipedia.org/wiki/Louis_Althusser">LOUIS ALTHUSSER</a>, <a href="http://en.wikipedia.org/wiki/Fredric_Jameson">FREDERIC JAMESON</a>.</p> <p><a href="http://www.cla.purdue.edu/academic/engl/theory/narratology/"><span style="font-weight: bold;">Narratology</span></a></p> <blockquote><p>Narratology examines the ways that narrative structures our perception of both cultural artifacts and the world around us. The study of narrative is particularly important since our ordering of time and space in narrative forms constitutes one of the primary ways we construct meaning in general. As Hayden White puts it, &#8220;far from being one code among many that a culture may utilize for endowing experience with meaning, narrative is a meta-code, a human universal on the basis of which transcultural messages about the nature of a shared reality can be transmitted&#8221; (<a href="http://www.cla.purdue.edu/academic/engl/theory/narratology/notes/whitecontent.html">Content</a> 1).</p></blockquote> <p>Players include: <a href="http://www.cla.purdue.edu/english/theory/narratology/modules/brooksplotmainframe.html">PETER BROOKS</a>, <a href="http://en.wikipedia.org/wiki/Roland_Barthes">ROLAND BARTHES</a>, <a href="http://www.cla.purdue.edu/English/theory/narratology/modules/greimasplot.html">ALGIRDAS GREIMAS</a>.</p> <p><a href="http://www.cla.purdue.edu/academic/engl/theory/newhistoricism/"><span style="font-weight: bold;">New Historicism</span></a></p> <blockquote><p>New Historicists are, like the Cultural Materialists, interested in questions of circulation, negotiation, profit and exchange , i.e. how activities that purport to be above the market (including literature) are in fact informed by the values of that market. However, New Historicists take this position further by then claiming that all cultural activities may be considered as equally important texts for historical analysis: contemporary trials of hermaphrodites or the intricacies of map-making may inform a Shakespeare play as much as, say, Shakespeare&#8217;s literary precursors</p></blockquote> <p>Players include: <a href="http://plato.stanford.edu/entries/foucault/">MICHEL FOUCAULT</a>, <a href="http://en.wikipedia.org/wiki/Stephen_Greenblatt">STEPHEN GREENBLATT</a>.</p> <p><a href="http://www.cla.purdue.edu/academic/engl/theory/postmodernism/"><span style="font-weight: bold;">Postmodernism</span></a></p> <blockquote><p>I will attempt to be consistent in using &#8220;postmodernism&#8221; to refer to a group of critics who, inspired often by the postmodern culture in which they live, attempt to rethink a number of concepts held dear by Enlightenment humanism and many modernists, including subjectivity, temporality, referentiality, progress, empiricism, and the rule of law. &#8220;Postmodernism&#8221; also refers to the aesthetic/cultural products that treat and often critique aspects of &#8220;postmodernity.&#8221;</p></blockquote> <p>Players include: <a href="http://www.cddc.vt.edu/feminism/Hutcheon.html">LINDA HUTCHEON</a>, <a href="http://en.wikipedia.org/wiki/Jean_Baudrillard">JEAN BAUDRILLARD</a>, <a href="http://en.wikipedia.org/wiki/Fredric_Jameson">FREDRIC JAMESON</a>.</p> <p><a href="http://www.cla.purdue.edu/academic/engl/theory/psychoanalysis/"><span style="font-weight: bold;">Psychoanalysis</span></a></p> <blockquote><p>Psychoanalytical criticism aims to show that a literary or cultural work is always structured by complex and often contradictory human desires. Whereas New Historicism and Marx-inspired Cultural Materialism analyze public power structures from, respectively, the top and bottom in terms of the culture as a whole, psychoanalysis analyzes microstructures of power within the individual and within small-scale domestic environments. That is, it analyzes the interiority of the self and of the self&#8217;s kinship systems. By analyzing the formation of the individual, however, psychoanalysis also helps us to understand the formation of ideology at large—and can therefore be extended to the analysis of various cultural and societal phenomena. Indeed, for this reason, psychoanalysis has been especially influential over the last two decades in culture studies and film analysis.</p></blockquote> <p>Players include: <a href="http://www.iep.utm.edu/f/freud.htm">SIGMUND FREUD</a>, <a href="http://en.wikipedia.org/wiki/Jacques_Lacan">JACQUES LACAN</a>, <a href="http://en.wikipedia.org/wiki/Julia_Kristeva">JULIA KRISTEVA</a>.</p> "The UC Irvine Fiasco" https://inpropriapersona.com/news/2007/the-uc-irvine-fiasco/ Sat, 15 Sep 2007 22:56:00 +0000 3d3b5b890c14fb07ae00086e6459d9dc <p>Belle Lettre <a href="http://lawandletters.blogspot.com/2007/09/thoughts-from-former-anteater-on.html">writes</a>:</p> <blockquote><p>Prominent constitutional scholar Erwin Chemerinsky (Duke) was hired to be the inaugural dean of the new law school at UC Irvine. . . . UCI began a nationwide search for an inaugural dean, and Chemerinsky was one of the finalists&mdash;and up till this week, the chosen candidate. However, within a week of hiring him, Chancellor Michael Drake of UCI flew to North Carolina to personally inform Prof. Chemerinsky that UCI would have to rescind the offer.</p> <p>. . .</p> <p>But in the wake of this scandalous, cowardly failure to hire Professor Chemerinsky, ostensibly due to his political beliefs, I am embarrassed for my school. I am unhappy that my school is so shortsighted that it has compromised its own commitment to excellence and academic freedom. I am unhappy that it has allowed politics to infect the selection process for the steward of a new law school that was to be devoted to public service and public education. As an alumna of UC Irvine, I am signing the petition to the Chancellor.</p></blockquote> <p>Personally, I have no connection to UC Irvine, although I am at a UC-affiliated law school myself. The whole episode just appears ridiculous, honestly, and whatever reason&mdash;politics, ideology, money&mdash;it seems silly for a new law school to turn down a scholar of Chemerinsky&#8217;s reputation and abilities (his book on the Constitution is currently saving my rear in Con Law).</p> <p>In the past 10-20 years, conservative academics have attempted (in a post-60s backlash, perhaps) to pretend that the liberal establishment runs the university systems. I think this episode might just point out how limited that view is. (I hope so.)</p> "The RIAA Meets Civil Procedure" https://inpropriapersona.com/news/2007/the-riaa-meets-civil-procedure/ Fri, 14 Sep 2007 19:29:00 +0000 4b6b4334d6a21b95326e06bbae7a442d <p><a href="http://recordingindustryvspeople.blogspot.com/2007/09/practice-tip-i-recommend-that.html">Recording Industry vs The People</a>:</p> <blockquote><p>In May of this year, the United States Supreme Court came down with the decision in Bell Atlantic v. Twombly, &#8211;US &#8211;, 127 S. Ct. 1955 (May 21, 2007) which established a &#8220;plausibility&#8221; standard for federal pleadings.</p> <p>In Interscope v. Rodriguez, it was held that the RIAA&#8217;s boilerplate complaint, which it has been using in all of its cases for the past 4 years, and which robotically alleges only the magic incantation of &#8220;downloading, distributing and/or making available for distribution&#8221;, is insufficient under the Twombly standard, and the Court dismissed the complaint.</p> <p>. . .</p> <p>Accordingly I urge all practitioners who have a &#8220;making available&#8221; complaint to move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or, if the time to do so has passed, to move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), on the basis of Twombly and Rodgriguez.</p></blockquote> <p>For more complete details, see: <a href="http://recordingindustryvspeople.blogspot.com/2007/09/practice-tip-i-recommend-that.html">Practice Tip: I recommend that defendants&#8217; lawyers consider making motions to dismiss complaint or motions for judgment on pleadings</a>.</p> <p>See, your CivPro prof was right! <a href="http://en.wikipedia.org/wiki/Civil_procedure">Civil procedure</a> rulings and issues really are critical.</p> "Is the Future of Legal Scholarship in the Blogosphere?" https://inpropriapersona.com/articles/is-the-future-of-legal-scholarship-in-the-blogosphere/ Wed, 12 Sep 2007 09:55:00 +0000 092822ea79d19ab10252200952fbcd49 <p><a href="http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1188464547361">Is the Future of Legal Scholarship in the Blogosphere? </a> by Margaret A. Schilt in <a href="http://www.legaltimes.com/">Legal Times</a>:</p> <blockquote><p>If you are looking for the future of legal scholarship, chances are that you may find it not in a treatise or the traditional law review but in a different form, profoundly influenced by the blogosphere.</p> <p>Law-related blogs are proliferating on the Internet—more than 80 are listed on the blogroll of one popular law-related blog, <a href="http://www.concurringopinions.com/">Concurring Opinions</a>. A significant number of the blogs—sometimes called &#8220;blawgs&#8221;—are hosted by law professors.</p> <p>What do these blogs look like? There&#8217;s a wide variety, from the weighty to the conversational or, in the jargon, the more &#8220;bloggy.&#8221; On the <a href="http://www.becker-posner-blog.com/">Becker-Posner Blog</a>, Judge Richard Posner and economist Gary Becker debate issues such as crime and economic development, health care reform and whether higher education is a good investment.</p> <p>Ann Althouse, professor of law at the University of Wisconsin Law School, blogs (<a href="http://althouse.blogspot.com/">althouse.blogspot.com</a>) in a more personal, less self-consciously scholarly mode, addressing subjects from Rudy Giuliani&#8217;s campaign to the auto show to Mother&#8217;s Day. (See &#8220;<a href="http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1183367180398">I Am in Love With Blogging</a>.&#8221;) Somewhere in the middle are blogs such as <a href="http://volokh.com/">The Volokh Conspiracy</a>, where Eugene Volokh fosters dialogue among 17 scholars on law and public issues, and the <a href="http://www.lawprofessorblogs.com/">Law Professor Blogs</a>, a collection of 50 different subject-related blogs, such as the ImmigrationProf Blog.</p></blockquote> "Need a Research Topic?" https://inpropriapersona.com/articles/need-a-research-topic/ Tue, 11 Sep 2007 16:58:00 +0000 d2253dea78ffcaba105e08b65df0545b <p><a href="http://www.acslaw.org/researchlink">Announcing ACS ResearchLink: Connecting Law Students and Lawyers Committed to Justice | American Constitution Society</a>:</p> <blockquote><p><a href="http://researchlink.acslaw.org/">ACS ResearchLink</a> creates a valuable online resource for the legal community by collecting legal research topics submitted by practitioners for law students to explore in faculty-supervised writing projects for academic credit. Practitioners will receive a copy of the resulting student papers, which ACS will post in a searchable online library. Follow these links to <a href="http://researchlink.acslaw.org/student/search.php">search</a> or <a href="http://researchlink.acslaw.org/student/search_result.php?full_text_search=&amp;auther=&amp;organization=&amp;browse=Browse+All&amp;page=1">browse</a> currently available research topics.</p></blockquote> <p>Via <a href="http://prawfsblawg.blogs.com/prawfsblawg/2007/09/students-need-t.html">Prawfsblog</a>.</p> "Does the “Other Party” on a Wiretapped Line Have Any Privacy Rights?" https://inpropriapersona.com/articles/does-the-other-party-on-a-wiretapped-line-have-any-privacy-rights/ Sun, 09 Sep 2007 22:19:00 +0000 0428647fdc5a249c79ea2de24b9bee4e <p><span style="font-weight: bold;">So when the government is targeting a person&#8217;s communications, what rights does the person calling &#8212; or being called &#8212; have? What about if the target is overseas and the &#8220;other party&#8221; is in the United States?</span></p> <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RuR7p0LGUwI/AAAAAAAAAGw/AWU9C4bXJW0/s1600-h/748351_aged_french_rotary_telephone_set.jpg"><img style="float: left; cursor: hand; margin: 0 10px 10px 0;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RuR7p0LGUwI/AAAAAAAAAGw/AWU9C4bXJW0/s200/748351_aged_french_rotary_telephone_set.jpg" border="0" alt="" /></a>This is an area that seems pretty unclear to me right now, although it might be pretty important given the <a href="http://web.archive.org/web/20080724100737/http://eff.org/Privacy/Surveillance/NSA/">NSA warrantless wiretapping</a> (both in the U.S. and abroad). Generally, courts seem to say that anyone whose voice (I don&#8217;t think I&#8217;d extend this to &#8220;communications&#8221; in general) is intercepted has <a href="http://en.wikipedia.org/wiki/Standing_(law)">standing</a> to challenge the validity of that interception, based on factors such as a lack of <a href="http://en.wikipedia.org/wiki/Probable_cause">probable cause</a>, etc., although with limitations (courts are more restrictive about the <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&amp;court=us&amp;vol=425&amp;invol=917">minimization requirement</a>, for example). But this analysis of standing appears to be based on <a href="http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_119.html">Title III</a> itself (i.e., <a href="http://en.wikipedia.org/wiki/Statutory_interpretation">statutory interpretation</a>), not really on <a href="http://en.wikipedia.org/wiki/United_States_Constitution">Constitutional</a> grounds. So, I&#8217;d venture to say that if a wiretap is done overseas, then the U.S. citizen will not be able to base standing to contest it on Title III, since it isn&#8217;t a Title III wiretap.</p> <p>Instead, it seems to me one would have to look more generally to Constitutional limitations on search and seizure, and try to pull in older, pre-Title III case law. Since modern courts haven&#8217;t needed to reach the Constitutional issues on wiretaps (they tend to look only to the statute), Constitutional case law hasn&#8217;t really advanced much in this area to match modern expectations of privacy (that&#8217;s my opinion, at least). I&#8217;m not quite sure how this would work with the international aspects, and I doubt the courts are very clear on that, either.</p> <p>In addition to pre-Title III wiretap cases, other possible analogues might be people whose letters or documents in which they have a privacy interest are intercepted during a search targeted (perhaps a search with no warrant would be the best analogue?) at someone else. What are the rights of these persons under the Constitution? See Whitaker (below) for a start on this idea.</p> <p>In terms of &#8220;unintended parties&#8221; whose telephone calls are intercepted under Title III, the courts have no problem with that at all, provided Title II requirements are adhered to (an inventory given to the court of identifiable persons and notice to those persons). Even when this isn&#8217;t perfectly done (either law enforcement should have known to name a specific person in advance, or screws up the inventory/notice) the courts seem generally OK with that (perhaps as long as it isn&#8217;t clearly intentional?)</p> <p>Here&#8217;s some resources to look at:</p> <ul> <li> <p><a href="http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002518----000-.html">18 USC § 2518</a> (10)(a) (&#8220;Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter [18 USCS §Â 2510 et seq.], or evidence derived therefrom.&#8221;)</p> </li> <li> <p><a href="http://www.tscm.com/EO12333.html">Executive Order 12,333</a> (1981) (&#8220;Agencies within the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes.&#8221;)</p> </li> <li> <p><a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&amp;navby=case&amp;no=975203">United States v. Whitaker</a>, 474 F.2d 1246 at 1247 (3rd. Cir. 1973) (&#8220;As with warrants to search for tangibles, Fed. R. Crim. P. 41, the warrant and notice requirements of Title III are directed to the protection of the primary target of the search. It has never been suggested that because letters in the possession of that primary target might contain communications from other parties those other parties are constitutionally entitled to notice and an inventory. Nor are such other parties aggrieved persons within the meaning of Title III. . . . Thus far the Court, despite the opportunity to do so, has declined to hold Title III to be unconstitutional.&#8221;)</p> </li> <li> <p><a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&amp;vol=415&amp;invol=143&amp;friend=nytimes">U.S. v. Kahn</a>, 415 U.S. 143 (1974) (tap revealed info on wife, although she was not a named target &#8212; not suppressed when prosecuting wife because order listed &#8220;other persons yet unknown&#8221;)</p> </li> <li> <p><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=421560">The Fourth Amendment and New Technologies</a>: Constitutional Myths and the Case for Caution, Orin S. Kerr, 102 Mich. L. Rev. 801 at 853-54 (2004) (&#8220;[C]ourts have held that Fourth Amendment reasonableness hinges on whether the wiretapping complied with statutory law of the foreign country where the wiretapping occurred.&#8221;)</p> </li> <li> <p>United States v. Peterson, 812 F.2d 486 at 490 (9th Cir. 1987). (&#8220;If, however, United States agents&#8217; participation in the investigation is so substantial that the action is a joint venture between United States and foreign officials, the law of the foreign country must be consulted at the outset as part of the determination whether or not the search was reasonable.&#8221;).</p> </li> </ul> "Now Part of Meraki’s Free the Net SF" https://inpropriapersona.com/articles/now-part-of-merakis-free-the-net-sf/ Sun, 09 Sep 2007 21:34:00 +0000 ca6454987befe0514d5ecacc4edf62b3 <p>I&#8217;ve just received my free Meraki Mini, and put it in my window. Now my neighbors should be able to see the &#8220;<a href="http://sf.meraki.net/">Free the Net</a>&#8221; signal, and hopefully we can get some momentum to spread the network to this part of SF!<a href="http://2.bp.blogspot.com/_NqBoNhiSDYI/RuRnGULGUuI/AAAAAAAAAGU/cNd2BWscjyg/s1600-h/Picture+1.png"><img style="float:left;cursor:hand;margin:0 10px 10px 0;" src="http://2.bp.blogspot.com/_NqBoNhiSDYI/RuRnGULGUuI/AAAAAAAAAGU/cNd2BWscjyg/s200/Picture+1.png" border="0" alt="" /></a></p> <blockquote><p>Your San Francisco neighbors are building a free wireless network, and you can be a part of it! With a Meraki repeater, you can connect to the network, expand its reach, and provide access to others.</p> <p>Right now, we&#8217;re giving Meraki Mini repeaters away to SF residents who can see the Free the Net signal, and the network will always be free.</p> <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RuRq20LGUvI/AAAAAAAAAGc/laQfEPOrDGQ/s1600-h/Picture+2.png"><img style="float:right;cursor:hand;margin:0 0 10px 10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RuRq20LGUvI/AAAAAAAAAGc/laQfEPOrDGQ/s200/Picture+2.png" border="0" alt="" /></a><br /> Our network is growing at a healthy rate, with new communities lighting up each month. Even if Free the Net hasn&#8217;t made it to your neighborhood yet, we&#8217;ll be there soon, and we&#8217;d like to let you know when we arrive!</p></blockquote> <p>So far, everything was incredibly simple. I just plugged it in, and it worked. (Of course, I did a little QoS work on my router, just in case&#8217;s Meraki&#8217;s rate limiting wasn&#8217;t good enough&mdash;I really don&#8217;t want to have visitors maxing out my upstream bandwidth and consequently taking out my VoIP service.) I&#8217;m not yet on <a href="http://sf.meraki.net/overview">Meraki&#8217;s map</a>, but hopefully I will be soon. Perhaps eventually we can get some Meraki-provided DSL lines around here too&#8230;<br /> See also:</p> <ul> <li><a href="https://inpropriapersona.com/2007/05/meraki-free-network-san-francisco.html">Meraki &#8220;Free the Network&#8221; San Francisco Project Grows</a> <li><a href="https://inpropriapersona.com/search?q=ok+share+wifi">Is it OK to Share my WiFi? (Series)</a></li> <li><a href="https://inpropriapersona.com/2007/07/why-provide-free-wifi.html">Why Provide Free WiFi?</a></li> </ul> "Judge Voids Part of Patriot Act" https://inpropriapersona.com/news/2007/judge-voids-part-of-patriot-act/ Fri, 07 Sep 2007 18:10:00 +0000 0ade07d1bf798fefa8346c2caa84edac <blockquote><p>A federal judge yesterday struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records.</p> <p>The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the measure violated the First Amendment and the separation of powers guarantee.</p> <p>Judge Marrero said he feared that the law could be the first step in a series of intrusions into the judiciary’s role that would be &#8220;the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.</p></blockquote> <p>From <a href="http://www.nytimes.com/2007/09/07/washington/07patriot.html?ex=1346904000&amp;en=21dd4e27cea33e51&amp;ei=5124&amp;partner=permalink&amp;exprod=permalink">Judge Voids F.B.I. Tool Granted by Patriot Act</a>.</p> "Patent Reform" https://inpropriapersona.com/articles/patent-reform/ Fri, 07 Sep 2007 15:49:00 +0000 ded2114a87c2323535ae21b92b02c926 <p>An <a href="http://www.patentlyo.com/patent/2007/09/patent-reform-1.html">update on patent reform legislation</a> working its way through Congress right now. An interesting amendment (from the comments on <a href="http://www.patentlyo.com/">Patently-O</a>) includes the following:</p> <blockquote><p>[The] banning of patents on &#8220;tax planning methods.&#8221; These are defined, inter alia, as any invention that is a &#8220;technique…that has, when implemented, the effect of reducing, minimizing, or deferring, a taxpayer&#8217;s tax liability&#8221; with the exception of tax preparation software.</p></blockquote> <p>Patent reform has the potential to be a really big deal, if it goes through. For more information, see, for example, <a href="http://web.archive.org/web/20070913080402/http://www.chicagotribune.com:80/business/chi-fri_patent_0907sep07,0,246159.story">Proposals for patent reform raising fears</a> from the Chicago Tribune.</p> "Theory v. Practice in Law School Education" https://inpropriapersona.com/articles/theory-v-practice-in-law-school-education/ Thu, 06 Sep 2007 17:44:00 +0000 c1849b153aed8c7bcbb6151a8e7c1b37 <p><a href="http://prawfsblawg.blogs.com/prawfsblawg/2007/09/the-balance-bet.html">PrawfsBlawg: The Balance Between Theory &amp; Practice</a>:</p> <blockquote><p>Recently, the balance between theory and practice in law schools has received markedly more attention (see the much-discussed Carnegie Foundation&#8217;s <a href="http://www.carnegiefoundation.org/publications/pub.asp?key=43&amp;subkey=618">Report on Educating Lawyers</a>). Many schools realize they do a disservice to their students if they don&#8217;t prepare them adequately for law practice. Several leading organizations have called for law schools to refocus and reform their curriculums to emphasize professionalism and professional skills. Students &#8212; more than ever approaching law school as critical consumers &#8212; demand greater help in preparing for the Bar Exam and succeeding in practice. For sure, this is nothing new. But the calls seem to no longer be falling on dea[f] ears. We may be on the brink of profound changes in (or at least ways in thinking about) American legal education.</p></blockquote> <p>Austen Parrish then points to a move in the opposite direction by those doing the hiring in law schools:</p> <blockquote><p>Unless you obtained your J.D. from an Ivy League law school, your chances of entering the market without an advanced degree also is slim. Interdisciplinary or &#8220;theoretical&#8221; scholarship is viewed as weighty, while characterizing scholarship as &#8220;practical&#8221; may be the wors[t] criticism one can hear.</p></blockquote> <p>Personally, I&#8217;m interesting in pursuing this additional advanced degree approach. It matches my reasons for being in law school. At the same time, law school is <em>professional</em> school, a place to train practical lawyers to practice the legal profession. Thus there clearly needs to be a balance, instead of a muddle, which is what I see in the current law school approach in actuality (at least at the four law schools I&#8217;ve been privileged enough to attend for various reasons and times).</p> <p>Per usual, the debate over what to teach has barely reached the ground, and at the point where the teaching meets the student, everything comes down to an individual&#8217;s approach. There is no unifying principle or approach.</p> <p>Can schools do better? Yes, both in theory and in practice. Law schools are failing both to help students pass the Bar and practice effectively, and they are failing to impart useful theoretical/analytical skills at a very high level. Actually, &#8220;failure&#8221; is too strong &#8212; students and professors are muddling through and in many cases succeeding brilliantly. But it could be much, much better than it is. And why should we settle for mediocre in our law schools?</p> "Federal judge slams government response to FOIA requests on surveillance program" https://inpropriapersona.com/articles/federal-judge-slams-government-response-to-foia-requests-on-surveillance-program/ Thu, 06 Sep 2007 17:31:00 +0000 1f9bc6716e1fdafdafc7ecccfcc2a349 <p><a href="http://web.archive.org/web/20110726222936/http://jurist.law.pitt.edu:80/paperchase/2007/09/federal-judge-slams-government-response.php">JURIST &#8211; Paper Chase: Federal judge slams government response to FOIA requests on surveillance program</a></p> <blockquote><p>A federal judge on Wednesday ordered the Federal Bureau of Investigation, the Office of Legal Counsel, and the office of the Attorney General to submit more information to the court in support of their motion for summary judgment in a consolidated lawsuit seeking the release of documents related to the government&#8217;s domestic surveillance program.</p></blockquote> <p>The court said:</p> <blockquote><p>While the court is certainly sensitive to the government&#8217;s need to protect classified information and its deliberative processes, essentially declaring &#8220;because we say so&#8221; is an inadequate method for invoking Exemption.</p></blockquote> "Earthlink Escapes Contract for Free San Francisco Wifi" https://inpropriapersona.com/articles/earthlink-escapes-contract-for-free-san-francisco-wifi/ Thu, 30 Aug 2007 19:31:00 +0000 12a1b0be3845ed361e7fb5158a13b69c <blockquote><p>EarthLink said late Wednesday that it is bailing out of a contract to build San Francisco&#8217;s free Wi-Fi service.</p> <p>Earlier on Wednesday, the city of Houston announced that EarthLink had agreed to pay a $5 million penalty to the city for not meeting its first deadline for building its wireless network. EarthLink has nine months to start construction or figure out a way to get out of the contract altogether.</p> <p>And now, the company has also dissolved its contract with San Francisco, which was approved in January but was awaiting final approval from San Francisco&#8217;s Board of Supervisors.</p></blockquote> <p>From <a href="http://news.com.com/8301-10784_3-9769087-7.html">c|net</a>.</p> <p>At least <a href="http://www.meraki.com/">Meraki</a>&#8216;s independent push to provide <a href="http://sf.meraki.net/">wireless access to San Francisco</a> residents is growing, perhaps because of much greater grass-roots, citizen-based involvement?</p> <p>From a legal standpoint (contract law), it seems possible that Earthlink might just escape the contract entirely (maybe, but there might be details I don&#8217;t have) because the Board of Supervisors never really accepted their offer (or never generated a final offer for Earthlink, depending on the details of the situation).</p> <p>So I think the San Francisco mayor might possible be right to blame the Board of Supervisors, but then again, the Board might be right to say they were right to be leery, given Earthlink&#8217;s meltdown:</p> <blockquote><p>San Francisco Mayor Gavin Newsom, who had stated publicly that he felt the current contract was sufficient, blamed the Board of Supervisors for dragging its feet and blowing the deal.</p> <p>Supervisor Ross Mirkarimi said the mayor was completely wrong in his assignment of blame.</p> <p>&#8220;The mayor wanted us to rush into a deal that was half-baked,&#8221; he said. &#8220;And now he&#8217;s trying to cover his tracks instead of looking at the real reason this deal fell through which is the fact that EarthLink is having a complete financial meltdown.&#8221;</p></blockquote> "What is the law school curriculum intended to achieve?" https://inpropriapersona.com/articles/what-is-the-law-school-curriculum-intended-to-achieve/ Tue, 28 Aug 2007 00:44:00 +0000 0295096ddf44c62b8d00c54e04e4dc38 <p>From <a href="http://prawfsblawg.blogs.com/">PrawfsBlog</a>:</p> <blockquote><p>There are several schools of thought about what the first year of law school is all about. The first is the &#8220;skills&#8221; thesis. This is the idea that the goal of the first year of law school is to introduce students to the fundamental skills of the profession and that they can learn the substance later.</p> <p>. . .</p> <p>I&#8217;ll call the second theory the &#8220;proficiency&#8221; thesis. This is the idea that the goal of the first year is to inculturate students by teaching them fundamental doctrines and values on which will (1) build their understanding of the structure of the American legal system and (2) allow them to have educated conversations in a professional context.</p></blockquote> <p>From: <a href="http://prawfsblawg.blogs.com/prawfsblawg/2007/08/what-is-the-ani.html">What is the animating theory of the law school curriculum?</a></p> <p>Whatever the animating theory behind the curriculum, I am not convinced the <span style="font-style:italic;">method</span> of teaching either &#8220;skills&#8221; or &#8220;proficiency&#8221; is too effectively conveyed by classes of 100 people, a single essay exam at the end, and a pseudo-Socratic approach (that is often merged with straight lecture). Perhaps law schools could benefit by looking at other educational approaches used by other disciplines: medicine, business, even engineering. I might feel more confident in the 1L year if there was more awareness and less of a sense that it&#8217;s simply &#8220;always been done this way.&#8221;</p> "Justice Not Blind Blog" https://inpropriapersona.com/articles/justice-not-blind-blog/ Mon, 27 Aug 2007 05:43:00 +0000 b83000a167a166d1df8216ffa51316b8 <p>A new blog I found recently (via <a href="http://www.blogcatalog.com/">BlogCatalog</a>), focusing on law and the use of technology in law: <a href="http://web.archive.org/web/20080806221040/http://www.justicenotblind.com:80/">Justice Not Blind</a>. As a current MS Word for Mac user (and hating it!), I&#8217;m going to be very curious how the editor&#8217;s <a href="http://www.justicenotblind.com/2007/08/20/pages-08-in-law-office/">experiment with Pages</a> works out!</p> "Optimal Copyright Law Length is 14 Years" https://inpropriapersona.com/articles/optimal-copyright-law-length-is-14-years/ Sun, 26 Aug 2007 22:25:00 +0000 dec118f397a1e48ab5aef3bbafdd752a <p>To get back in the spirit of posting, I&#8217;d like to note the following story, via Irish law blog <a href="http://www.cearta.ie/">cearta.ie</a>: <a href="http://www.cearta.ie/2007/07/how-long-should-the-copyright-term-be/">How long should the copyright term be?</a></p> <p>In Irelend, it&#8217;s life + 70 years, as it essentially is in the U.S. after various changes to federal law, partly as a result of industry lobbying and partly as a result of new international treaties like <a href="http://en.wikipedia.org/wiki/TRIPS">TRIPS</a>:</p> <blockquote><p>Works created in or after 1978 are extended copyright protection for a term defined in 17 U.S.C. § 302. With the passage of the <a title="Sonny Bono Copyright Term Extension Act" href="http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act">Sonny Bono Copyright Term Extension Act</a>, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shortest.</p></blockquote> <p>(From <a href="http://en.wikipedia.org/wiki/United_States_copyright_law">Wikipedia</a>.)</p> <p>From the <a href="http://arstechnica.com/news.ars/post/20070712-research-optimal-copyright-term-is-14-years.html">Ars Technica article</a> by <a href="http://arstechnica.com/authors.ars/Nate+Anderson">Nate Anderson</a>:</p> <blockquote><p>It&#8217;s easy enough to find out how long copyrights last, but much harder to decide how long they should last—but that didn&#8217;t stop Cambridge University PhD candidate Rufus Pollock from using economics formulas to answer the question. In a newly-released paper, Pollock pegs the &#8220;optimal level for copyright&#8221; at only 14 years.</p> <p>Pollock&#8217;s work is based on the promise that the optimal level of copyright drops as the costs of producing creative work go down. As it has grown simpler to print books, record music, and edit films using new digital tools, the production and reproduction costs for creative work in have dropped substantially, but actual copyright law has only increased.</p> <p>According to Pollock&#8217;s calculations (and <a href="http://www.rufuspollock.org/economics/papers/optimal_copyright.pdf">his paper</a> [PDF] is full of calculations), this is exactly the opposite result that one would expect from a rational copyright system. Of course, there&#8217;s no guarantee that copyright law has anything to do with rationality; as Pollock puts it, &#8220;the level of protection is not usually determined by a benevolent and rational policy-maker but rather by lobbying.&#8221; The predictable result has been a steady increase in the period of copyright protection during the twentieth century.</p></blockquote> "Back to my second year of law school" https://inpropriapersona.com/news/2007/back-to-my-second-year-of-law-school/ Sun, 26 Aug 2007 22:19:00 +0000 3cce7b26fb1c33951eb173b76496a19e <p>I&#8217;m now in my second-year of law school, and fortunately I&#8217;ve managed to enroll mostly in seminar classes, which are much more to my taste than large lecture classes (the traditional law school format, which I find pedagogically unsound).</p> <p>So now I&#8217;m in Intellectual Property and Constitutional Law I (both old-school lecture classes), Alternative Dispute Resolution (how does one avoid litigation to solve disputes? These days, this is less alternative that it once was, given the high costs of going to court), Intellectual Property/Biotech (patents, copyrights and more, all focused on the biotech world), and Work/Life Law (see the <a href="http://www.worklifelaw.org/">Center for WorkLife Law</a> for more information). A good mix, I think.</p> <p>The gap in posting over the last month has mostly been due to my transition from summer back to law school again. (Not that anyone likely cares!)</p> "Clearwire Wireless Broadband Review" https://inpropriapersona.com/articles/clearwire-wireless-broadband-review/ Sun, 26 Aug 2007 22:15:00 +0000 4a16da3887837e7ff1902f5250960f26 <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpBRXyb-7II/AAAAAAAAAEE/TAgJTBcz0Eg/s1600-h/Picture+3.png"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpBRXyb-7II/AAAAAAAAAEE/TAgJTBcz0Eg/s200/Picture+3.png" alt="" border="0" /></a><br /> <a href="http://2.bp.blogspot.com/_NqBoNhiSDYI/RpBJTSb-7GI/AAAAAAAAAD0/quf0up0q5Kk/s1600-h/Picture+1.png"><img style="float:left;cursor:pointer;margin:0 10px 10px 0;" src="http://2.bp.blogspot.com/_NqBoNhiSDYI/RpBJTSb-7GI/AAAAAAAAAD0/quf0up0q5Kk/s200/Picture+1.png" alt="" border="0" /></a><a href="http://www.clearwire.com/">Clearwire</a> (NASDAQ: <a href="http://finance.google.com/finance?q=CLWR">CLWR</a>) is a broadband Internet Service Provider with a twist: it&#8217;s wireless. The sleek Clearwire modems use a licensed 2.5 GHz technology (not line-of-sight) instead of the standard, unlicensed 2.4 GHz frequency of 802.11 WiFi devices, and in my testing, seemed to perform quite well. <span style="font-style:italic;">(Please note: I tested out their service as a customer. I own no stock and received no renumeration for this review.)</span></p> <p>They brag about the service&#8217;s simplicity: just plug it in and it works. In fact, that&#8217;s exactly how it worked for me. (Actually, I cheated, and signed up at a mall kiosk. The only extra work they did, though, was to log in once the device was connected to a computer to activate it. No calling remote technicians, no wiring, no fiddling with MAC addresses. You can watch their <a href="http://www.clearwire.com/wireless-broadband/install_vid.html">installation video</a> to see for yourself.)</p> <p>I signed up for the &#8220;Premium&#8221; service, which promises &#8220;up to 1.5 Mbs&#8221; down, and &#8220;up to 256 kbps up.&#8221; I could have opted for the &#8220;Value&#8221; service, which offers slower downloads for about $10/month less.</p> <p>Here in Honolulu, on the 27th floor, the Cleawire modem claims full signal strength (note that I couldn&#8217;t reliably get any WiFi signals to work due to high packet loss, even with a dd-wrt powered router with an after-market antenna), and I see no packet loss. A &#8220;ping&#8221; to Google looks like this:</p> <blockquote><p>PING www.l.google.com (72.14.253.103): 56 data bytes<br /> 64 bytes from 72.14.253.103: icmp_seq=0 ttl=243 time=171.751 ms<br /> 64 bytes from 72.14.253.103: icmp_seq=1 ttl=243 time=158.453 ms<br /> 64 bytes from 72.14.253.103: icmp_seq=2 ttl=243 time=171.066 ms<br /> 64 bytes from 72.14.253.103: icmp_seq=3 ttl=243 time=143.770 ms</p> <p>4 packets transmitted, 4 packets received, 0% packet loss<br /> round-trip min/avg/max/stddev = 143.770/161.260/171.751/11.402 ms</p></blockquote> <p>Decent, although 161 ms average round-trip time isn&#8217;t great. It might make some games, for example, lag a bit (but I don&#8217;t play online games). In contrast, my Comcast service averages around 55 ms. (<span style="font-style:italic;">And note that the fact that I was using Clearwire in Hawaii might have an impact on this, of course! So YMMV.</span>)</p> <p><a href="http://www.speedtest.net/">Speedtest.net</a> gives this using a server in San Francisco:</p> <p><a href="http://2.bp.blogspot.com/_NqBoNhiSDYI/RpBPYSb-7HI/AAAAAAAAAD8/-hEslNBLZ4M/s1600-h/Picture+2.png"><img style="cursor:pointer;" src="http://2.bp.blogspot.com/_NqBoNhiSDYI/RpBPYSb-7HI/AAAAAAAAAD8/-hEslNBLZ4M/s320/Picture+2.png" alt="" border="0" /></a></p> <p>Downloads do seem to be quite snappy, but I do notice a slight delay while browsing sometimes—not terrible, but noticeable.</p> <p>Although line-of-sight is not required, Clearwire does recommend putting the wireless modem in your window, and, if necessary, using an 802.11 WiFi router to share the connection. (This is what I&#8217;m doing right now.)</p> <p><span style="font-weight:bold;">Mobile Use</span></p> <p>One intriguing idea suggested by Clearwire is to take the wireless modem with you. Provided Clearwire serves the location you&#8217;re visiting, this gives you mobile access while away from home. Of course, I would call this more of a &#8220;luggable&#8221; solution than truly a mobile one, since the modem, while lights, isn&#8217;t tiny, and does require a power outlet to function.</p> <p>To test this, I took my laptop and the Cleawire modem up to the roof of my building (the 31st floor). Everything worked normally, with full signal strength. Next, I tried an outdoor hotel bar by the beach. Other than the fact that (1) beach bars in hotels are expensive and (2) functioning power outlets can be hard to come by, it worked great!</p> <p>See also:</p> <ul> <li><a href="https://inpropriapersona.com/2007/07/is-it-ok-to-share-my-wifi-clearwire.html">Can I Share My WiFi? (Clearwire)</a> </li> </ul> "9 Myths of Work/Life Balance in Law" https://inpropriapersona.com/articles/9-myths-of-worklife-balance-in-law/ Thu, 09 Aug 2007 02:20:00 +0000 6f5817907a34b2e8cfd36749998bfcf4 <p><em><a href="http://web.archive.org/web/20070503195806/http://www.uchastings.edu/site_files/WLL/PARMythbusters.pdf">PAR&#8217;s Mythbusters</a></em> provides hard data to bust nine key myths about work/life balance in the legal profession:</p> <blockquote><p>Myth 1: Work/life balance is a women&#8217;s issue.</p> <p>Myth 2: Law firms are trying hard, but the problems of retaining women and offering work/life balance are too intractable.</p> <p>Myth 3: Law firms lose money on part-timers.</p> <p>Myth 4: You can tell whether you will be able to work part-time by checking a law firm&#8217;s website.</p> <p>Myth 5: Going &#8220;in house&#8221; is the way to achieve balance.</p> <p>Myth 6: Going into the government or public interest law is the way to achieve balance.</p> <p>Myth 7: &#8220;I&#8217;ll just take off a year or two when I have my kids, and then I&#8217;ll go back to practicing law.&#8221;</p> <p>Myth 8: Work/life balance is inconsistent with the practice of law at the highest levels.</p> <p>Myth 9: Young lawyers say they want work/life balance, but when the chips are down they really want the highest possible salary.</p></blockquote> <p><span>The Project for Attorney Retention (PAR) studies work/life issues in legal employment. Its <a href="http://www.pardc.org/">web site</a> includes information for lawyers and law firms about non-stigmatized part-time programs, best practices for retaining attorneys through alternative work schedules, and how part-time really is at different firms:</span></p> <blockquote><p>To kick off PAR&#8217;s Law School Project, PAR co-director Joan Williams spoke at two events last week: a <a href="http://www.wbadc.org/cde.cfm?event=161714">law student event for the Women&#8217;s Bar Association of the District of Columbia</a>, and the <a href="http://legallyfemale.typepad.com/legally_female_what_does_/about_the_conference/index.html">Ms. J.D. conference at Yale Law School</a>. PAR&#8217;s Law School project is designed to help legal employers respond effectively to the desire of many law students for legal jobs that offer both the opportunity to practice law at the highest level and the opportunity for work/life balance.</p> <p>One resource for law students is <em><a href="http://web.archive.org/web/20070503195802/http://www.uchastings.edu/site_files/WLL/PARFindJob.pdf">How to Find a Job that Allows for Work/Life Balance</a>, </em>co-written by PAR and the Stanford Law School Office of Career Services.</p></blockquote> <p>Via Up to Par: <a href="http://lawyersworklife.blogspot.com/2007/04/par-launches-par-law-school-project.html">PAR launches the PAR Law School Project</a></p> "Family-Leave Values" https://inpropriapersona.com/articles/family-leave-values/ Sun, 29 Jul 2007 20:28:00 +0000 e792e9b8af60f029d6cadaedb786a120 <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 250px" class="wp-caption alignright"><a href="http://www.crunchbase.com/company/newyorktimes"><img class="zemanta-img-configured" title="Image representing New York Times as depicted ..." src="http://www.crunchbase.com/assets/images/resized/0001/0591/10591v1-max-250x250.png" alt="Image representing New York Times as depicted ..." width="250" height="46" /></a><figcaption class="wp-caption-text">Image via CrunchBase</figcaption></figure> </div> <p>The New York Times has an <a href="http://www.nytimes.com/2007/07/29/magazine/29discrimination-t.html?ex=1343361600&amp;en=9a0c42cf80e3e1b3&amp;amp;amp;amp;amp;amp;amp;ei=5124&amp;partner=permalink&amp;exprod=permalink">excellent article</a> in today&#8217;s paper, written by Eyal Press, dealing with a new perspective on &#8220;family values&#8221;: the importance of employees with family responsibilities to have flexibility, including leave, from their employers, and lawsuits that are seeking to enforce this flexibility using a variety of legal approaches:</p> <blockquote><p>Since the mid-1990s, the number of workers who have sued their employers for supposed mistreatment on account of family responsibilities&#8211;becoming pregnant, needing to care for a sick child or relative&#8211;has increased by more than 300 percent. More than 1,150 such lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.</p></blockquote> <p>Press suggests that this indicates that so-called &#8220;family values&#8221; issues have moved beyond the old conservative battle cries of &#8220;gay marriage and abortion&#8221;:</p> <blockquote><p>Beyond causing headaches for their employers, the lawsuits are serving notice that the battle over &#8220;family values&#8221; is no longer just about gay marriage and abortion: it&#8217;s also about workplace attitudes that some advocates believe do significantly more to undermine family life than those controversial practices do.</p></blockquote> <p>Of course, an effective solution from the employer and employee perspective is to pro-actively deal with these issues, and step away from the control obsession so many employers feel. The benefits often extend well beyond avoiding lawsuits:</p> <blockquote><p>Some C.E.O.&#8217;s, however, have begun rewriting the rules on their own, spurred by the need to compete for high-quality employees. Several years ago, a businessman named Jim Johnson dropped in on a talk Joan Williams was giving in Denver, because his wife had heard about Williams and urged him to go. Afterward, he decided to reorganize the moving-and-storage company he runs. Today, many of Johnson&#8217;s employees log more hours at home than at the office. &#8220;I&#8217;ve got customer-service people working at home, order-entry people, long-distance dispatchers,&#8221; he told me. There has been a slight increase in productivity, he said, as well as another benefit: &#8220;This flex-hour, work-at-home group&#8211;the turnover has been almost nonexistent.&#8221;</p></blockquote> <p>Press also points out how, on this issue (as on a number of quality-of-life issues), the United States lags the rest of the developed world:</p> <blockquote><p>Indeed, in the United States today, working parents receive supports and benefits that in much of the developed world would be considered scandalously ungenerous. Some unflattering comparisons with Europe were drawn at the E.E.O.C. hearing in April, where Williams suggested that even companies had reached the point of wanting more guidance from Washington about how caregivers should be treated. The message was evidently heard. In late May, the agency issued enforcement guidelines that for the first time spell out the myriad situations &#8212; a police detective removed from high-profile investigations after she adopts a child, a technician and father denied a part-time posting reserved for a woman &#8212; prohibited under existing law. The E.E.O.C. makes clear that personnel decisions implemented on the basis of stereotypical assumptions are unacceptable and urges employers &#8220;to make it easier for all workers, whether male or female, to balance work and personal responsibilities.&#8221;</p></blockquote> <p>Lawsuits are, perhaps, an unfortunate way to get there. Actually ending up in court is painful for all involved, benefiting perhaps only the pocketbooks of the attorneys. But sometimes, as with segregation and racial discrimination, lawsuits are the only way to force society to change:</p> <blockquote><p>It would be hard to imagine such a step happening were it not for the wave of lawsuits in recent years. Meanwhile, people like Karen Deonarain are waiting for their days in court. It has been more than three years since she lost her job. Her lawsuit, which charges that she was fired for complications related to her pregnancy, amounting to a form of sex discrimination, is in the discovery phase. A hint of weariness creeps into her voice when she talks about the case. &#8220;I think they want to drag it out so I&#8217;ll go away,&#8221; she told me, laughing softly.</p></blockquote> <p>From a personal perspective, I&#8217;d like to point out too that this does not simple effect mothers, or fathers, but anyone who may wish to care for a sick relative, deal with their own health issues, or simply maintain a healthy life beyond the workplace. For this reason, I think &#8220;work-life&#8221; issues are absolutely critical for the American workplace to confront and deal with if we wish to maintain productivity and effectiveness. We cannot simply squeeze more work out of employees indefinitely. We need to work, as the old adage goes, &#8220;smarter, not harder.&#8221; And balancing work and life is a key part of this.</p> <p>For more information, see:</p> <ul> <li><a href="http://www.nytimes.com/2007/07/29/magazine/29discrimination-t.html?ex=1343361600&amp;en=9a0c42cf80e3e1b3&amp;amp;amp;amp;amp;amp;amp;ei=5124&amp;partner=permalink&amp;exprod=permalink">Family-Leave Values</a> in the New York Times</li> <li><a href="http://www.worklifelaw.org/">WorkLife Law Center</a></li> <li><a href="http://www.amazon.com/gp/product/0195147146?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;amp;amp;amp;creative=9325&amp;creativeASIN=0195147146">Unbending Gender: Why Family and Work Conflict and What to Do About It</a> by Professor Joan Williams</li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=3e16b435-8eaf-496e-a0b7-bd3771d59ec0" alt="" /></div> "5 Steps to Take After a Data Center Failure" https://inpropriapersona.com/articles/5-steps-to-take-after-a-data-center-failure/ Thu, 26 Jul 2007 01:43:00 +0000 cd79ba020d363dbdfdb661d9c7e301d7 <p>In the aftermath of the <a href="http://www.365main.com/">365Main</a> data center <a href="http://www.theregister.co.uk/2007/07/24/web_site_outages/">power failure</a>, it&#8217;s important to think about what steps customers (of any <a href="http://en.wikipedia.org/wiki/Data_center">data center</a>) ought to take now:</p> <ol> <li><a href="#inform">Inform customers</a></li> <li><a href="#check">Check procedures and systems</a></li> <li><a href="#redundancy">(Re-)consider redundancy and failover</a> </li> <li><a href="#contracts">Review your SLAs and contracts</a></li> <li><a href="#learn">Learn</a></li> </ol> <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/Rqf_kGlKQBI/AAAAAAAAAGE/HAmC04_gvTY/s1600-h/781187_7_messages_recieved.jpg"><img style="float:left;cursor:pointer;margin:10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/Rqf_kGlKQBI/AAAAAAAAAGE/HAmC04_gvTY/s200/781187_7_messages_recieved.jpg" alt="" border="0" /></a><a name="inform">1.</a><span style="font-weight:bold;"> </span><a href="http://laughingsquid.com/massive-power-outages-hit-san-franciscos-soma-district/">Keep your customers informed</a><span style="font-weight:bold;"> of any outages.</span> Customers can be remarkably forgiving if you tell them what&#8217;s going on. But know your customers, and approach this communication appropriately.</p> <p><a name="check">2.</a><span style="font-weight:bold;"> Check your own procedures and systems. </span>Could you have brought up your systems more quickly or more effectively after the data center itself failed? Did your processes contribute to the problem in some way, or make recovery more difficult? If you haven&#8217;t had a failure yet, this is harder, but try to replicate failure (on backup systems, perhaps) if possible.</p> <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/Rqf-pGlKQAI/AAAAAAAAAF8/5QVF7VvfaNM/s1600-h/419970_front_rack_server.jpg"><img style="float:right;cursor:pointer;margin:10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/Rqf-pGlKQAI/AAAAAAAAAF8/5QVF7VvfaNM/s200/419970_front_rack_server.jpg" alt="" border="0" /></a><a name="redundancy">3.</a><span style="font-weight:bold;"> (Re-)consider redundancy and </span><a href="http://en.wikipedia.org/wiki/Failover">failover</a><span style="font-weight:bold;">.</span> Even the best, and most expensive, data center in the world can have failures. Take a careful look at the cost/benefit of hosting your services at a redundant data center as well. Cost savings could be found, for example, by making your redundant systems using older hardware or less-powerful, hardware, smaller pipes, or less sophisticated centers. It may be better to serve 50% of your normal traffic successfully from your backup systems—or it may be better to simply apologize to customers and wait for your main system to come up. (At the very least you&#8217;d better have a plan for having a temporary &#8220;site is down message&#8221; available if something does go wrong.) This is a very fact-specific inquiry. <span style="font-weight:bold;">The point is to do the inquiry.</span> Don&#8217;t just rest with the <span style="font-style:italic;">status quo.</span></p> <p><a name="contracts">4.</a><span style="font-weight:bold;"> Look over your </span><a href="http://en.wikipedia.org/wiki/Service_Level_Agreement">Service Level Agreements</a><span style="font-weight:bold;"> (SLAs).</span> An SLA is a <a href="http://en.wikipedia.org/wiki/Contract">contract</a> between the data center provider and you, the customer. As such, it ought to be treated to the respect due any contract you enter into that may determine your future existence as a viable business.</p> <p>What does your data center promise? Make sure you have detailed and specific requirements, not vague statements like &#8220;We&#8217;re the best in the industry and promise 99.99999% uptime.&#8221; This future promise is unlikely to be enforceable under contract law, and is essentially marketing &#8220;<a href="http://en.wikipedia.org/wiki/Puffery">puffery</a>.&#8221; While nice for the marketing people, it carries no real legal weight.</p> <p>Instead, work with your technical people (and your lawyers) to draw up specific requirements, like: &#8220;power will be maintained to our servers at all times, meaning no more than 30 seconds of power-loss over any 1 hour period.&#8221; Other metrics might include network uptime, average time for the data center helpdesk to answer, and so on. If you have expectations, put them in writing in the SLA! Any promises the marketing people make you are pretty out once you sign the contract that is the SLA (see the <a href="http://en.wikipedia.org/wiki/Parol_evidence_rule">parol evidence rule</a>).<br /> <a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RqgBwmlKQCI/AAAAAAAAAGM/vSUlRWm0OAw/s1600-h/744483_pen_on_paper.jpg"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RqgBwmlKQCI/AAAAAAAAAGM/vSUlRWm0OAw/s200/744483_pen_on_paper.jpg" alt="" border="0" /></a><br /> Each requirement should be accompanied by a result to the data center if it is not met (sometimes called &#8220;<a href="http://en.wikipedia.org/wiki/Liquidated_damages">liquidated damages</a>,&#8221; although the result need not be monetary). Thus, for example, adding that the data center owes $1,000 for every 1 minute of insufficient electrical power to servers, with a maximum of $50,000 per day. <span style="font-style:italic;">Remember: this is incredibly situation specific: both your lawyers and your technical folks will need to be involved to get the specificity that will protect you in a courtroom.</span> These &#8220;damages&#8221; also need to be reasonable from both perspectives, and cannot be punitive. Finally, you should <span style="font-style:italic;">always</span> require the an action plan from the data center provider on how to avoid the problem in the future.</p> <p>You may decide that your SLAs are really for managers and marketers, and that you&#8217;d like to put the technical specifications into a &#8220;Service Level Specification&#8221; (SLS) document, and perhaps the legal specifics into a &#8220;Service Contract&#8221; or similar. Whatever you call them, just make sure your lawyer tells you that you have a proper contract in the correct jurisdiction, and that it will actually make what&#8217;s important to you enforceable. That&#8217;s the leverage you&#8217;ll need if things go ever go really wrong, and (paradoxically, some may feel) will keep you out of court: the more specific your contract is, the less likely anyone will want to litigate it.</p> <p>Some resources for preparing SLAs:</p> <ul> <li><a href="http://www.sla-zone.co.uk/">Service Level Agreement Zone</a></li> <li><a href="http://www.service-level-agreement.net/">The SLA Toolkit</a> </li> </ul> <p>I highly recommend you have your lawyer review anything you come up with. It&#8217;s far, far cheaper to pay for legal assistance now that either to end up out of business or suing your data center in court.</p> <p>If your SLAs are not up to the level I&#8217;ve described, take the time to update them now.<span style="font-style:italic;"></span></p> <p><a name="learn">5.</a><span style="font-weight:bold;"> Finally: learn from the experience.</span> Review what happened. Discuss. Create a test environment. Fail your services. Review. Discuss. Wash, rinse, repeat.</p> <p>Have other sites or resources to contribute? Put them in the comments, or <a href="https://inpropriapersona.com/contact">send them to me</a> directly.</p> "Why are lawyers miserable: want a list? - Times Online" https://inpropriapersona.com/articles/why-are-lawyers-miserable-want-a-list-times-online/ Wed, 18 Jul 2007 19:50:00 +0000 353bb626991d913a07c0856edbf109d3 <p><a href="http://business.timesonline.co.uk/tol/business/law/article2045254.ece">Why are lawyers miserable: want a list? &#8211; Times Online</a>:</p> <blockquote> <ol> <li>the dehumanising hours.</li> <li>the yawning gap between their intelligence and the mind-numbing nature of their work. At least if you flipped burgers for a living you’d have the satisfaction of giving people momentary pleasure.</li> <li>the yawning gap between the ideals of those entering the profession and the reality. Some go into law because they dream of fighting injustice, but discover on entering that most of what lawyers do benefits big business.</li> <li>the cumulatively lowering nature of the work. We all end up being shaped by our careers. Being a good lawyer involves assuming that people will do the most awful things and that treachery is to be expected.</li> <li>the vortex of hatred that envelops them entirely.</li> <li>the self-inflicted nature of their suffering.</li> </ol> <p>Looking back over this list, I realise little of it is going to elicit much sympathy. Somehow, I can&#8217;t see the Red Cross diverting resources away from Darfur to come to the rescue of professionals earning £1,000 an hour.</p> <p>But human misery isn&#8217;t relative, and I can&#8217;t help thinking these problems could be solved. All City firms need to do is take a moment or two to take a good look at themselves. But that must be difficult when time is (so much) money.</p></blockquote> <p>All of these points apply to U.S.-based lawyers, too, of course, perhaps even more than in the U.K. However, I think it is possible (I hope it is) to be happy as a lawyer, although perhaps it means giving up the lucrative and prestigious jobs with the big firms&#8230; (once the loans are paid off!) I certainly know that as an individual, I will have to take this route.</p> <p>Personally, although perhaps this is unlikely, I think the big firms would do well to try to improve their lawyer&#8217;s happiness, instead of churning through them quickly (as they reportadly do). Issues such as work-life balance are more and more critical for U.S. workers these days, including lawyers. While centers such as the <a href="http://www.worklifelaw.org/">Center for WorkLife Law</a> in San Francisco try to advocate for these issues, change is slow in the legal profession.</p> <p>I suppose I can always go back to being a software developer.</p> <p>(Via <a href="http://www.slaw.ca/2007/07/18/lawyer-dissatisfaction/">Slaw.com</a>, <a href="http://www.robhyndman.com/2007/07/17/on-lawyer-dissatisfaction/">Rob Hyndman</a>, and the <a href="http://blogs.wsj.com/law/2007/07/16/british-lawyers-are-unhappy-too/">WSJ Law Blog</a>.)</p> "Help the EFF analyze FBI documents" https://inpropriapersona.com/news/2007/help-the-eff-analyze-fbi-documents/ Thu, 12 Jul 2007 19:32:00 +0000 c5260772ab8099c7791ef88d6ee62d73 <p>From the <a href="http://www.eff.org/deeplinks/archives/005353.php">Electronic Frontier Foundation</a>:</p> <blockquote><p>We&#8217;ve already started scouring <a href="http://web.archive.org/web/20071010103407/http://www.eff.org:80/flag/07656JDB/">newly-released documents</a> relating to the misuse of National Security Letters to collect Americans&#8217; private information. But don&#8217;t let us have all fun — you, too, can dive into the docs and help uncover the truth about the FBI&#8217;s abuse of power. All 1138 pages are freely downloadable (with searchable text) from EFF’s website, and we&#8217;ll be posting a new batch every month.</p></blockquote> <p>This is an excellent project to help out on, just remember:</p> <blockquote><p>EFF received these documents as the result of a FOIA request made through our <a href="http://web.archive.org/web/20080708200528/http://www.eff.org/flag/">FLAG project</a>. We ask that you please mention EFF if you use these documents in any way. We&#8217;re a nonprofit organization, and our funding for this project depends on showing that our work is important and relevant. For more information about these documents or EFF&#8217;s FLAG project, please contact EFF Staff Attorney Marcia Hofmann at <a href="mailto:marcia@eff.org">marcia(at)eff.org</a>.</p></blockquote> <p>(Via <a href="http://web.archive.org/web/20080905080347/http://www.boingboing.net/2007/07/11/help_eff_figure_out_.html">BoingBoing</a>.)</p> "Why Provide Free WiFi?" https://inpropriapersona.com/articles/why-provide-free-wifi/ Thu, 12 Jul 2007 14:30:00 +0000 0207a563d77e30b518a05dfdb54d8942 <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 250px;"> <dt class="wp-caption-dt"><a href="http://www.flickr.com/photos/38161132@N05/3526038132"><img title="Laptop at a Cafe" src="http://farm4.static.flickr.com/3343/3526038132_cef83c58d0_m.jpg" alt="Laptop at a Cafe" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image by <a href="http://www.flickr.com/photos/38161132@N05/3526038132">workshifting</a> via Flickr</dd> </dl> </div> </div> <p>Why should hotels, cafes, and other service-oriented establishments offer free WiFi to their customers? I know many places are scared of WiFi hordes descending on them and stealing all their tables and never buying more than a cup of drip coffee (a phenomenon I have never witnessed or participated in), but I&#8217;d like to present some good reasons why businesses should just give us free WiFi!</p> <p><span style="font-weight: bold;">1. It&#8217;s reasonably priced</span><br /> A DSL line is $50 or so a month, and should be fine for most smaller businesses, like cafes. A simple router for less than $100 will do fine as well. More complex setups (like hotels) will have more initial outlays, and may need a bigger pipe &#8212; but if enough people are using your Internet connection that you need to upgrade, then obviously it&#8217;s an in-demand service, no? And simple mesh routers are available from <a href="http://meraki.com/products/">Meraki</a> that could extend WiFi throughout many hotels without needing much infrastructure wiring at all.</p> <p><span style="font-weight: bold;">2. It differentiates you</span><br /> Starbucks/T-Mobile charge a fortune for their WiFi access. Offer the same for free, and customers will buy your core products from <span style="font-style: italic;">you</span>. I certainly will (and do).</p> <p><span style="font-weight: bold;">3. It isn&#8217;t your core business anyway, but it does boost it</span><br /> Why charge when your core business is selling coffee or rooms? Focus on what you do best, and leave WiFi to be additional value that supplements your core offerings &#8212; like comfortable chairs or tables.</p> <p><span style="font-weight: bold;">4. It&#8217;s the equivalent of a newspaper or book</span><br /> Instead of drinking a coffee and reading a book, many customers today want to view their email or read their news online while they sip their coffee.</p> <p><span style="font-weight: bold;">5. Customers hate to feel &#8220;nickel-and-dimed&#8221;</span><br /> If I spend $250+ on a hotel room, I expect to have sheets. I also expect to have WiFi, not to pay $5 per hour. When I&#8217;m traveling for business, and absolutely need WiFi access, this is even more true. True, I can expense it, but why bother? I&#8217;d rather stay someplace that treats me like a valued customer. Or as Rafe Needleman <a href="http://reviews.cnet.com/4520-3000_7-6212563-1.html">wrote back in 2005</a>:</p> <blockquote><p>Yes, hotel owners, I understand that you&#8217;re trying to make up for revenue lost from your usurious telephone charges, now that everyone uses cell phones for all their calls. But come on, those fees were ridiculous, too. When your guests pay for a room, the idea is that they are paying for the infrastructure. Try charging them for running water, air conditioning, or clean sheets and see what happens.</p></blockquote> <p><span style="font-weight: bold;">6. Billing is complicated, free is easy</span><br /> If it&#8217;s free, customers are tolerant of problems. If it costs money, they expect a corresponding level of service. If they&#8217;re paying for a strictly regular 24-hour period, this becomes even more true. Any down time is costing them money, and you&#8217;d better be prepared to deal with that.</p> <p><span style="font-weight: bold;">7. If you giv</span><span style="font-weight: bold;">e me a reason to stay and buy your product, I will</span><br /> I never buy more than a coffee (at most&#8230;) at Starbucks. With WiFi so expensive there, I have no reason to stay. What am I going to do, stare uncomfortably at other people? Fine, I can read a book, but when I&#8217;m supposed to be working anyway, why not let me stay and do it on your turf? I&#8217;ll buy more the longer I&#8217;m there. If I don&#8217;t, give me a nudge after an hour or two, or if you need the table. I&#8217;ll understand. Treat me respectfully, and I&#8217;ll respond with the same.</p> <p><span style="font-weight: bold;">8. If you have tables, let people use them!</span><br /> Why do you have tables if you don&#8217;t want people to sit in them? And if you&#8217;ve never noticed, crowds attract crowds &#8212; if you&#8217;re always busy, people will want to come. Of course, you&#8217;ll need to manage this respectfully and creatively, but aren&#8217;t customers the reason you&#8217;re in business? Without us, how are you planning to make money?</p> <p><span style="font-weight: bold;">9. If you have a problem with freeloaders, get creative</span><br /> Cover power outlets if you have to (I hate that, but I get it). Hand out daily passwords when people buy something. Arrange your furniture to maximize space. Talk to your customers! Ask them for help.</p> <p><span style="font-weight: bold;">10. You can always change your model later</span><br /> If you&#8217;re a cafe, free at the beginning is probably your best bet as startup costs for a small space are relatively small. For a hotel, I get it, infrastructure is expensive, so you might need to have some way of recouping your costs beyond room rates (if you charge $250+/night, though, I think you&#8217;d better rethink this math).</p> <p>But keep the &#8220;free&#8221; idea in mind; customers like it when things are free! And if you get bogged down in users and need to start adding capacity and spending more money, well, think first about how much extra you might be bringing in due to the WiFi before you think about charging.</p> <p>And if it is time to think about recouping costs &#8212; perhaps WiFi has now become part of your core business &#8212; think about keeping it reasonable, offering it free with a purchase, or offering different levels of service. <span style="font-style: italic;">Your customers will thank you!<br /> </span></p> "Reporting on the Supreme Court" https://inpropriapersona.com/news/2007/reporting-on-the-supreme-court/ Thu, 12 Jul 2007 04:35:00 +0000 c24c16e151e5257319af9d3d37bf6130 <p><a href="http://www.scotusblog.com/movabletype/">SCOTUSblog</a> has an <a href="http://web.archive.org/web/20091009183546/http://www.scotusblog.com/movabletype/archives/2007/07/the_fourth_esta.html">interesting write-up</a> about a C-SPAN program dealing with the challenges for reporters in covering the Supreme Court:</p> <blockquote><p>With little need for anonymous sources and few opportunities to interview the main subjects of their stories, Supreme Court reporters differ from much of the Beltway press corps. &#8220;So much of [the job] is reading,&#8221; said Barnes, who just completed his first term covering the Court, adding he now knows why Biskupic calls the job &#8220;reporting by highlighter.&#8221; Panelists explained that reporters must submit detailed interview requests through the public affairs office to officially interview the Justices. With the exception of Justice Souter, all Justices generally are willing to speak to the media – though not always on the record, panelists said. The limited access to the Justices is &#8220;part of the reason people stay on the beat a long time,” Barnes said. “It takes a long time to get to know these people.&#8221;</p></blockquote> <p>This is something I&#8217;ve wondered about while staring at a mass of opinions, concurrences and dissents and trying to understand the real import of a Supreme Court ruling. It&#8217;s often completely unclear, and trying to get through that mess and also add some personality to the dry names must be especially challenging.</p> "Res ipsa loquitur" https://inpropriapersona.com/articles/res-ipsa-loquitur/ Tue, 10 Jul 2007 23:18:00 +0000 a9bd796223c32508763db2c8ac6ae83a <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpQU3yb-7UI/AAAAAAAAAFk/qxG-8LLkaQM/s1600-h/Picture+2.png"><img style="float:left;cursor:pointer;margin:0 10px 10px 0;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpQU3yb-7UI/AAAAAAAAAFk/qxG-8LLkaQM/s200/Picture+2.png" alt="" border="0" /></a>If you&#8217;ve ever taken a <a href="http://en.wikipedia.org/wiki/Tort">Torts</a> class, and wanted a better example of <a href="http://en.wikipedia.org/wiki/Res_ipsa_loquitur"><span style="font-style:italic;">res ipsa loquitur</span></a> (&#8220;the thing speaks for itself&#8221;) than a barrel falling out of a warehouse, how about this?</p> <blockquote><p>A 1,500-pound wrecking ball broke free of a crane and careened through downtown streets in Meadville on Monday, bouncing off cars before coming to rest in the trunk of a Ford Taurus.</p> <p>Along its nearly mile-long journey, the 3-foot sphere damaged 13 vehicles and injured three people. It appeared that the cable used to attach the ball to the crane arm snapped, police said.</p> <p>&#8211; From the <a href="http://www.pittsburghlive.com/x/pittsburghtrib/news/cityregion/s_516470.html">Pittsburg Tribune-Review</a>, photo by Susan Fenton for The Tribune-Review</p></blockquote> "My Top Ten General Legal Research Sites for U.S. Law" https://inpropriapersona.com/articles/my-top-ten-general-legal-research-sites-for-u-s-law/ Mon, 09 Jul 2007 09:36:00 +0000 8dabcee759c4ed44e2ffb07f5b287768 <p><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpGs6Sb-7QI/AAAAAAAAAFE/OpIzVO3pzKo/s1600-h/Picture+7.png"><img style="float:left;cursor:pointer;width:107px;height:114px;margin:0 10px 10px 0;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpGs6Sb-7QI/AAAAAAAAAFE/OpIzVO3pzKo/s200/Picture+7.png" alt="" border="0" /></a>10. <a href="http://www.wikipedia.org/">Wikipedia</a><br /> A collaborative electronic encyclopedia, editable (in theory) by anyone. Sounds like a recipe for disaster? Perhaps, but Wikipedia entries do an excellent job explaining many legal principles in an approachable way. Better for initial research to understand an area of the law, rather than as an in-depth, reliable source. Personally, I would never cite to Wikipedia or view its entries as authoritative, but it&#8217;s a great place to start.</p> <ol> <li><a href="http://www.nolo.com/">Nolo</a><br /> A great place for non-lawyers (or lawyers unfamiliar with a specific area of law) to start legal research. Again, like Wikipedia, I would be unlikely to cite to Nolo, but it provides great information and resources, especially on common legal problems.</li> </ol> <p><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpGj-Sb-7LI/AAAAAAAAAEc/QVxoLYc0RJA/s1600-h/Picture+2.png"><img style="float:left;cursor:pointer;margin:10px;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpGj-Sb-7LI/AAAAAAAAAEc/QVxoLYc0RJA/s200/Picture+2.png" alt="" border="0" /></a>7. <a href="http://www.gpoaccess.gov/">GPO Access</a><br /> A service of the U.S. Government Printing Office that provides free electronic access to a wealth of important information products produced by the Federal Government, including budget information, Code of Federal Regulations and Federal Register, Commerce Business Daily and congressional bills, calendars, directories, hearings, prints, reports, the Congressional Record, Supreme Court decisions, and much more.</p> <ol> <li>Cornell University&#8217;s <a href="http://www.law.cornell.edu/">Legal Information Institute</a><br /> Provides the <a href="http://www.law.cornell.edu/uscode/">U.S. Code</a>, <a href="http://www.law.cornell.edu/supct/index.html">Supreme Court opinions</a>, and <a href="http://www.law.cornell.edu/wex/">Law about&#8230;</a> A good source for actual materials (as opposed to secondary sources or analysis). Also contains a useful law dictionary and law encyclopedia, information on electronic citation, and much more. This resource is more appropriate for law students or legal professionals, but parts should be useful to anyone.</li> </ol> <p><a href="http://1.bp.blogspot.com/_NqBoNhiSDYI/RpGkgyb-7MI/AAAAAAAAAEk/b8EZ55te8vo/s1600-h/Picture+3.png"><img style="float:right;cursor:pointer;margin:0 10px 10px 0;" src="http://1.bp.blogspot.com/_NqBoNhiSDYI/RpGkgyb-7MI/AAAAAAAAAEk/b8EZ55te8vo/s200/Picture+3.png" alt="" border="0" /></a>5. <a href="http://thomas.loc.gov/">THOMAS</a>, from the Library of Congress<br /> A collection of legislative resources, including bills, bill status, committee reports, the Congressional Record, treaties, and other legislative-focused material.</p> <p><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpGndSb-7OI/AAAAAAAAAE0/TC9lmFchv9s/s1600-h/Picture+5.png"><img style="float:left;cursor:pointer;margin:0 10px 10px 0;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpGndSb-7OI/AAAAAAAAAE0/TC9lmFchv9s/s200/Picture+5.png" alt="" border="0" /></a>5. <a href="http://www.oyez.org/">Oyez</a><br /> A multimedia archive devoted to the Supreme Court of the United States and its work. It aims to be a complete and authoritative source for all audio recorded in the Court since the installation of a recording system in October 1955.<br /> <a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpGoCib-7PI/AAAAAAAAAE8/TZphrP-DQ_c/s1600-h/Picture+6.png"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpGoCib-7PI/AAAAAAAAAE8/TZphrP-DQ_c/s200/Picture+6.png" alt="" border="0" /></a></p> <ol> <li><a href="http://jurist.law.pitt.edu/">JURIST</a><br /> A Web-based legal news and real-time legal research service. From their site: &#8220;In US media terms, JURIST might be described as an online fusion of PBS and C-SPAN for legal news. In international terms, JURIST&#8217;s objective news philosophy and its global agenda are modeled on the BBC World Service.&#8221; Excellent for current legal research and analysis of topical legal issues.</p> </li> <li> <p><a href="http://www.findlaw.com/">FindLaw</a><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://2.bp.blogspot.com/_NqBoNhiSDYI/RpGimCb-7KI/AAAAAAAAAEU/Ba4Jx-fTEfk/s200/Picture+1.png" alt="" border="0" /><br /> A free site with tools for both the general public doing legal research as well as legal professionals. Includes free access to many cases, especially Supreme Court cases, and both state and federal codes and regulations. One of the best free legal research tools for in-depth search and legal research.</p> </li> <li> <p><a href="http://www.google.com/">Google</a><br /> I <span style="font-style:italic;">always</span> consult Google, even on the most obscure legal question. It&#8217;s amazing what it can find, and with much less effort than manually hunting through every legal research site. But remember Google isn&#8217;t exhaustive, and that you shouldn&#8217;t believe everything you read on the Web&#8230; that&#8217;s why Real Lawyersâ„¢ always look to &#8220;professional&#8221; sources, like Westlaw or LexisNexis.</p> </li> <li> <p><a href="http://www.westlaw.com/">Westlaw</a> and <a href="http://www.lexisnexis.com/">LexisNexis</a><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpKJZCb-7TI/AAAAAAAAAFc/otwWFX13PmE/s1600-h/Picture+2.png"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpKJZCb-7TI/AAAAAAAAAFc/otwWFX13PmE/s200/Picture+2.png" alt="" border="0" /></a><br /> I&#8217;ve combined these two because debate about which one is better often rises<a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpKJJCb-7SI/AAAAAAAAAFU/6JegJXzIIhA/s1600-h/Picture+1.png"><img style="float:left;cursor:pointer;margin:0 10px 10px 0;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RpKJJCb-7SI/AAAAAAAAAFU/6JegJXzIIhA/s200/Picture+1.png" alt="" border="0" /></a> to religious proportions! Both offer the kind of legal research tools for which law firms and attorneys are willing to pay, such as the full-text of most published U.S. cases, abstracts and summaries of cases, full-text access to legal treatises, full-text access to many law reviews and journals, citation checking, and much more. No professional legal research is complete without a search of these two behemoths.</p> </li> </ol> <p>The above 10 sites provide the tools I regularly use for general legal research. Obviously, when narrowing in, other sites (like <a href="http://www.eff.org/">EFF</a>, the <a href="http://www.cdt.org/">CDT</a>, and many others) provide more focused, topic-specific information. But you&#8217;ve got to start somewhere in any research project. And of course, research into other countries&#8217; laws or international law is a whole other thing entirely&#8230;</p> <p>Have other favorite, general legal research tools, or your own blog post on this topic? Let me know via <a href="https://inpropriapersona.com/contact">email</a> or in the comments!</p> "Is it OK to Share my WiFi? (Clearwire)" https://inpropriapersona.com/articles/is-it-ok-to-share-my-wifi-clearwire/ Sun, 08 Jul 2007 09:10:00 +0000 93557430565fcd932363907678569311 <p>With the growth of wireless Internet and various <a href="https://inpropriapersona.com/2007/06/two-approaches-to-community-wifi.html">sharing services</a>, the question arises: is it OK to intentionally share your connection with other people? For more background, read the <a href="https://inpropriapersona.com/2007/06/is-it-ok-to-share-my-wifi-comcast.html">first post</a> in this series about <a href="https://inpropriapersona.com/2007/06/is-it-ok-to-share-my-wifi-comcast.html">sharing WiFi, and covering Comcast</a>. (<span style="font-style:italic;">Note: please do not rely on this for legal advice. I am a law student, not a lawyer, and certainly not your lawyer.</span>)</p> <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpBjhyb-7JI/AAAAAAAAAEM/uNZN1A0BG9o/s1600-h/Picture+1.png"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RpBjhyb-7JI/AAAAAAAAAEM/uNZN1A0BG9o/s200/Picture+1.png" border="0" alt="" /></a><br /> From <a href="http://www.clearwire.com/">Clearwire&#8217;s</a> <a href="http://www.clearwire.com/company/legal/aup.htm">Acceptable Use Policy</a>:</p> <blockquote><p>11. Use of Your Account by Others. You may not, through action or inaction, allow others to use the Service for illegal or improper activities or for any purpose or in any manner prohibited by this AUP. <span style="font-style:italic;">You may not permit your network, through action or inaction, to be configured in such a way that gives a third party the cap</span><span style="font-style:italic;">ability to use the Service in an illegal or improper manner or for any purpose or in any manner prohibited by this AUP.</span></p></blockquote> <p>The sentence I emphasized above is very interesting. It suggests that, for example, you could be violating the AUP if you do not secure your access point, or even if you give a third-party access in any manner whatsoever. This is true <span style="font-style:italic;">even if the person with whom you share does not violate the AUP or do anything illegal or improper.</span> Simply permitting others the <span style="font-style:italic;">possibility</span> of such action is sufficient to trigger this provision. That said, however, it looks to me like Clearwire is concerned less with legal and proper use of the service by third parties than with copyright infringement, illegal behavior, spamming, etc. (See other parts of the AUP.)</p> <blockquote><p>12. Reselling. You may not directly or indirectly reproduce, duplicate, copy, sell, provision, resell, rent, lend, pledge, transfer, distribute or exploit any portion of the Service without Clearwire&#8217;s prior written consent.</p></blockquote> <p>#12 ties in nicely with similar provisions of Comcast: Clearwire doesn&#8217;t want you to profit by reselling their service, unless they agree to it in writing. (Pretty obvious, really.) I expect, given this language, that even asking your neighbors to pay part of the fee would fall into this category, and would likely run afoul of this provision. So if you share, it should be out of your own boundless generosity, not as a means to recoup costs.</p> <p>Finally, what can Clearwire do if you violate their AUP?</p> <blockquote><p>In the event that you violate this AUP, Clearwire may, without limitation, restrict your access to Clearwire&#8217;s network, increase the fees associated with your Service, including upgrading you to a higher class of Service, or immediately suspend or terminate your Service.</p></blockquote> <p>Note that even if they permit your sharing now, and then decide later on that your neighbor&#8217;s access is a violation of the AUP, that&#8217;s OK. In other words, they can change their minds later:</p> <blockquote><p>Waiver of any violation of this AUP by Clearwire shall not act as a waiver of any subsequent violation, nor shall it be deemed to be a waiver of the underlying obligation or term. No failure or delay by Clearwire in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.</p></blockquote> <p>Finally, a last note from this section:</p> <blockquote><p>You are solely responsible for all content that you transmit or receive utilizing the Service, and are responsible for abuse of your account by others.</p></blockquote> <p>This is interesting, especially the reminder that you &#8220;are responsible for abuse of your account by others.&#8221; But bear in mind a critical fact: <span style="font-style:italic;">this only applies to your contract with Clearwire.</span> So while this may seem to imply that someone who breaks into your account and downloads child pornography makes you liable, that isn&#8217;t true, since this section only applies to the AUP, not other laws (criminal laws, for example). But, Clearwire could terminate your account if this happens, although I suspect this would be more likely to happen if you were intentionally leaving open your access point (versus someone breaking your WEP key).</p> <p>So, in summary, if you are sharing with responsible people you trust, Clearwire may well not bother you, but they have every right to terminate your service once you start sharing with &#8220;third parties&#8221; like your neighbors, given #11, above. And don&#8217;t ask for money: that clearly violates #12. In short, if you do share, do it for free.</p> <p>See also:</p> <ul> <li><a href="http://www.cearta.ie/2007/06/is-it-ok-to-share-wi-fi/">Is it ok to share wifi?</a> (From the Irish blog <a href="http://www.cearta.ie/">caerta.ie</a>.)</li> <li><a href="https://inpropriapersona.com/2007/06/is-it-ok-to-share-my-wifi-comcast.html">Is it OK to Share my WiFi? (Comcast)</a></li> <li><a href="https://inpropriapersona.com/2007/06/two-approaches-to-community-wifi.html">Two Approaches to Community WiFi Sharing</a></li> </ul> "6th Circuit Dismisses One Case Against NSA Surveillance" https://inpropriapersona.com/articles/6th-circuit-dismisses-one-case-against-nsa-surveillance/ Fri, 06 Jul 2007 19:56:00 +0000 965e0aa6bcb9f7d826e3b2dcefe1e533 <p>The 6th Circuit Court of Appeals &#8220;ducks&#8221; the issues by dismissing on a technical ground (lack of standing) to avoid ruling on any substantive points:</p> <blockquote> <p>The majority in a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a narrow ground, saying the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.</p> <p>Because it is extremely difficult to show concrete injury from the highly classified program, the effect of the ruling was to insulate the program from judicial scrutiny in ordinary federal courts.</p> </blockquote> <p>(From the <a href="http://www.nytimes.com/2007/07/06/washington/06cnd-nsa.html?ex=1341374400&amp;en=ae336804f8d4d224&amp;ei=5088&amp;partner=rssnyt&amp;emc=rss">NY Times article</a>.)</p> <p>Searching for narrow grounds to dismiss a case is not at all uncommon for courts seeking to avoid controversial issues. This is also common when a majority feel that it ought to be left to another branch, such as the legislative branch, to step in and deal with the issue.</p> <p>Is this cowardice or a proper desire to avoid &#8220;judicial activism&#8221; and stepping on the toes of other branches?</p> <p>See also:</p> <ul> <li><a href="http://volokh.com/archives/archive_2007_07_01-2007_07_07.shtml#1183731777">The Volokh Conspiracy</a></li> </ul> "The Changing Role of Lawyers" https://inpropriapersona.com/articles/the-changing-role-of-lawyers/ Wed, 04 Jul 2007 07:40:00 +0000 279953bdd2fcbe04b74ac65aad858e6e <p><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RotXKyb-7FI/AAAAAAAAADs/fIglu7RxUIQ/s1600-h/law_library_small.jpg"><img style="float:left;cursor:pointer;width:149px;height:211px;margin:0 10px 10px 0;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RotXKyb-7FI/AAAAAAAAADs/fIglu7RxUIQ/s200/law_library_small.jpg" alt="" border="0" /></a>In a post entitled &#8220;<a href="http://web.archive.org/web/20101130212325/http://scrawford.blogware.com/blog/_archives/2007/7/2/3066986.html">The new legal physics,</a>&#8221; Susan Crawford writes:</p> <blockquote><p>When I went to law school, I had the sense that we all pretty much knew what the role of lawyers was. This view was such an essential part of the legal landscape that we took it for granted, much as we take for granted the idea that there is such a thing as an identifiable moment in time or a persistent &#8220;identity&#8221; for any given person.</p></blockquote> <p>She goes on to say:</p> <blockquote><p>Things have changed.</p> <p>In the electronic world we now inhabit, most lawyers rarely argue before courts; anyone can look up a rule; and deals get done by the lawyers who have done exactly that type of deal before and can pull it off for the lowest price. We may be finding (like Einstein) that many of the classical assumptions we started off with don&#8217;t work in a world that is very different from the one in which those assumptions were born and grew up. This is disturbing. It&#8217;s just as disturbing as the notion that time depends on the observer, and the idea that each of our identities changes in light of our life experience and the influence of the minds of the people around us. But it could free us up to be different kinds of lawyers.</p></blockquote> <p>As an older law student with a number of years of IT management experience behind me, I find the idea of a changing legal landscape less disturbing, perhaps, but no less striking. I am also not convinced that &#8220;anyone can look up a rule&#8221; and that the &#8220;lowest price&#8221; is so key.</p> <p>Or, rather, it <span style="font-style:italic;">is</span> true, anyone <span style="font-style:italic;">can</span> do so, and price <span style="font-style:italic;">is</span> critical, but as in the tech world, where anyone can look up an algorithm or nab some clip art, it takes practice, training and experience to add that &#8220;something extra&#8221; that is so critical. Lawyers, like effective developers and designers, will need to <span style="font-style:italic;">add value.</span> It is not enough anymore to just graduate from a top law school and then simply work at a big fancy firm to earn respect (and perhaps even a little awe?). We need creativeness and intelligence to do things just a little differently, just a little better, in order to <span style="font-style:italic;">add value</span> to our legal services.</p> <p>One of the biggest danger facing the legal profession, and one I see regularly amongst clueless managers deal with IT, is the old trap of &#8220;a little knowledge is a dangerous thing.&#8221; Like designers and developers, lawyers need to guide those who have looked up a rule for themselves, and help them understand their own limits, and the value we can bring. And, when appropriate, we can even help them do it themselves (although I shudder at the concept of FrontPage, the legal research edition&#8230;)</p> <p>Susan Crawford&#8217;s conclusion is spot on, I think:</p> <blockquote><p>Nothing ever goes away. Law firms aren&#8217;t going to disappear in my lifetime. But it does seem to me that lawyers will have to evolve to deal with a system that is vastly different from what was in place just twenty years ago. Everyone has access to all the information, so lawyers can&#8217;t charge for looking things up. They can only stay &#8220;off the treadmill&#8221; if they let go of the idea that they have some omniscient brooding right to charge for the kinds of tasks they used to do. Like newspapers, movie studios, telephone companies, and post offices, lawyers will have to adapt to the new physics of the internet.</p></blockquote> <p>(From the <a href="http://scrawford.blogware.com/blog">Susan Crawfold blog</a> via <a href="http://www.cearta.ie/">cearta.ie</a>.)</p> "A Little Legal Humor" https://inpropriapersona.com/articles/a-little-legal-humor/ Wed, 04 Jul 2007 04:23:00 +0000 687ae9592acfa26590ddfb0280c12e55 <p>From <a href="http://web.archive.org/web/20121124100207/http://www.power-of-attorneys.com/legal_definitions.htm">Power of Attorneys</a>:</p> <p><b>Civil law</b> &#8211; <a href="http://en.wikipedia.org/wiki/Civil_law">Wikipedia</a><br /> Quirky American derivation of Roman law wherein lawyers and judges routinely manipulate a written collection of laws that apply to everyone but the lawyers and judges themselves, who are exempt from observance of said laws; practiced by uncivil lawyers in an uncivil environment and administered by uncivil judges in uncivil courtrooms. <span style="font-style:italic;"></span><br /> <b>Common law</b> &#8211; <a href="http://en.wikipedia.org/wiki/Common_law">Wikipedia</a><br /> Kooky legal doctrine wherein judges are allowed to make up the law as they go along, citing precedents of other knuckle head judges as the basis for their home cooked decisions. Under the table payoffs and campaign contributions from lawyers pleading their cases are common components taken into consideration when common law is determined by judges. See &#8220;<a href="http://web.archive.org/web/20121124100207/http://www.power-of-attorneys.com/legal_definitions.htm">Campaign contributions</a>.&#8221;</p> "The Start of Summer Law in Hawaii" https://inpropriapersona.com/news/2007/the-start-of-summer-law-in-hawaii/ Tue, 03 Jul 2007 01:57:00 +0000 3be380b97c55ca0f4cbd517f7199e786 <p>Today was my first day of summer law classes in Hawaii:</p> <p><a href="http://lawschool.ekris.org/search/label/Professional%20Responsibility">Professional Responsibility</a>: ethics and rules for lawyers. Should be simple, but the rules are far from common sense. The simplest rule: never lie. The more complex areas appear to revolve around zealous client representation, conflict of interest, and how to handle multiple clients (such as writing a will for a husband and wife).</p> <p><a href="http://lawschool.ekris.org/search/label/International%20Human%20Rights">International Human Rights</a>: how does international law cross borders to protect us all? Where does our notion of &#8220;universal&#8221; human rights come from? How do we enforce these protections?</p> <p>Should be an interesting summer session! (<a href="http://lawschool.ekris.org">Notes from Law School</a> will be collecting my notes from these classes.)</p> "13 Things I Learned in My First Year of Law School" https://inpropriapersona.com/articles/13-things-i-learned-in-my-first-year-of-law-school/ Sun, 01 Jul 2007 11:44:00 +0000 cd44e4eaaf32596064b3c80805fa3bd4 <p><span style="font-weight: bold;">13.</span> This list is not exclusive.</p> <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 240px" class="wp-caption alignright"><a href="http://www.flickr.com/photos/22032393@N05/5351175006"><img class="zemanta-img-configured" title="The Law School Casebook" src="http://farm6.static.flickr.com/5009/5351175006_a775e49293_m.jpg" alt="The Law School Casebook" width="240" height="159" /></a><figcaption class="wp-caption-text">Image by David Ortez via Flickr</figcaption></figure> </div> <p><span style="font-weight: bold;">12.</span> Everyone talks about the &#8220;real world,&#8221; but no one can quite articulate what that means.</p> <p><span style="font-weight: bold;">11.</span> Everyone agrees that one exam at the end of a semester is pedagogically unsound, and bears little resemblance to the above-mentioned &#8220;real world,&#8221; but no one does anything about it.</p> <p><span style="font-weight: bold;">10.</span> If stress is good preparation for the &#8220;real world,&#8221; I must be really prepared now.</p> <p><span style="font-weight: bold;">9.</span> The Rule Against Perpetuities: it seems straightforward until you try to apply it. But it&#8217;s fun, in a twisted and evil sort of way!</p> <p><span style="font-weight: bold;">8.</span> <span style="font-style: italic;">Quidquid latine dictum sit, altum videtur.</span></p> <p><span style="font-weight: bold;">7.</span> Lawyers are the biggest fans of lawyer jokes.</p> <p><span style="font-weight: bold;">6.</span> Debt is inevitable. Accept it, deal with it, plan for it.</p> <p><span style="font-weight: bold;">5.</span> Perhaps surprisingly to many, the professors really want you to succeed.</p> <p><span style="font-weight: bold;">4.</span> Law students are smart and talented.</p> <p><span style="font-weight: bold;">3.</span> Most barriers to success are artificial: the curve, the single exam, the pace. Without these to sift us out, most students would succeed.</p> <p><span style="font-weight: bold;">2.</span> Many, perhaps most, law students are interested in the public good. (But see &#8220;debt is inevitable,&#8221; above.)</p> <p><span style="font-weight: bold;">1.</span> There is one true answer to any legal question: &#8220;It depends.&#8221;</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=2e07d223-6099-4ae8-9f1d-cb8b206980a2" alt="" /></div> "Legal Ethics and Professional Responsibility in Hawaii" https://inpropriapersona.com/news/2007/legal-ethics-and-professional-responsibility-in-hawaii/ Sun, 01 Jul 2007 01:25:00 +0000 c42eadbbac8a9d95b5b8cb20c8afd719 <p><a href="http://g-ec2.images-amazon.com/images/I/51Y5CASG88L._AA240_.jpg"><img style="float:left;cursor:pointer;width:200px;margin:0 10px 10px 0;" src="http://g-ec2.images-amazon.com/images/I/51Y5CASG88L._AA240_.jpg" alt="" border="0" /></a>For my &#8220;professional responsibility&#8221; class here in Hawai&#8217;i during the summer, my class is reading <a href="http://www.amazon.com/gp/product/082483044X?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;amp;amp;amp;amp;amp;amp;amp;amp;creative=9325&amp;creativeASIN=082483044X">Broken Trust: Greed, Mismanagement, And Political Manipulation at America&#8217;s Largest Charitable Trust</a>: the Bishop Estate in Hawai&#8217;i. So far, the book—jointly written by our professor, <a href="http://www.hawaii.edu/law/site-content/faculty-staff/faculty-administration-profiles/faculty/randall-w-roth/">Randall Roth</a>—provides an excellent historical background on Hawai&#8217;i, its native peoples, and its politics, something I only had a vague knowledge of before now.</p> <p>It&#8217;s an excellent read, and should provide useful practical background to Professor Roth&#8217;s legal ethics class.</p> "Zotero Gets More Legal" https://inpropriapersona.com/articles/zotero-gets-more-legal/ Fri, 29 Jun 2007 02:26:00 +0000 be146e1358106f473da5068a4f5c9d73 <p><a href="http://www.zotero.org/">Zotero</a>, the <a href="http://www.firefox.org/">Firefox</a> extension for managing research and citations, has <a href="http://www.zotero.org/blog/zotero-too-good-to-be-legal/">expanded support for legal materials</a>:</p> <blockquote><p>We are excited to announce a set of seven new translators of particular interest to those who study law. Zotero users can now automatically capture <a href="http://www.law.cornell.edu/supct/html/94-172.ZO.html">Supreme Court decisions</a>, <a href="http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&amp;Sect2=HITOFF&amp;p=1&amp;u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&amp;amp;r=12&amp;f=G&amp;l=50&amp;co1=AND&amp;d=PTXT&amp;s1=%22body+armor%22&amp;OS=%22body+armor%22&amp;RS=%22body+armor%22">patents</a>, and <a href="http://web.archive.org/web/20100722230550/http://ecfr.gpoaccess.gov:80/cgi/t/text/text-idx?c=ecfr&amp;sid=e250389f3b1ac8fbf5a9e0bf6d53cbd1&amp;rgn=div5&amp;view=text&amp;node=24:2.1.3.8.1&amp;idno=24">laws and regulations</a>. We would like to thank Bill McKinney who developed these translators for our community. Zotero has already been <a href="http://stayviolation.typepad.com/chucknewton/2007/02/zotero_is_cool.html">recognized</a> as a <a href="http://web.archive.org/web/20090525050849/http://www.bkpracticepro.com:80/2007/02/21/collect-manage-and-cite-your-research-sources-free/">great tool</a> for lawyers and legal scholars, and these seven new translators make that all the more apparent. </p></blockquote> <p>This is good news for those of us doing legal research. So many citation products available focus much more on other academic disciplines, and neglect legal research. Hopefully, Bluebook-style output will be <a href="http://forums.zotero.org/discussion/192/bluebook-styles/#Item_0">available soon,</a> too.</p> <p>See also: <a href="http://www.slaw.ca/2007/06/28/zotero-2/">Zotero,</a> at <a href="http://www.slaw.ca">Slaw.ca.</a></p> "Freedom of Speech in the United States" https://inpropriapersona.com/articles/freedom-of-speech-in-the-united-states/ Thu, 28 Jun 2007 09:13:00 +0000 5ba445302cbf3661b7ea72f29d6cd45c <p><a href="http://www.bc.edu/bc_org/avp/cas/comm/free_speech/cover.jpg"><img style="float:left;cursor:pointer;width:200px;margin:0 10px 10px 0;" src="http://www.bc.edu/bc_org/avp/cas/comm/free_speech/cover.jpg" alt="" border="0" /></a>An excellent <a href="http://www.bc.edu/bc_org/avp/cas/comm/free_speech/decisions.html">library of court decisions</a> related to free speech in the United States, compiled as part of a book, <a href="http://www.amazon.com/gp/product/1891136100?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=9325&amp;creativeASIN=1891136100">Freedom Of Speech In The United States</a><img src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=1891136100" width="1" height="1" border="0" alt="" style="border:none!important;margin:0!important;" />, by <a href="http://web.archive.org/web/20071215000209/http://www.bc.edu:80/bc_org/avp/cas/comm/free_speech/authors.html">Dale A. Herbeck and Thomas L. Tedford.</a></p> <p>Covers historical development in England, including the <a href="http://www.bc.edu/bc_org/avp/cas/comm/free_speech/magnacarta.html">Magna Carta</a> and <a href="http://www.bartleby.com/130/index.html">John Stuart Mill,</a> then moves onto modern controversies such as privacy rights, obscenity, and copyright.</p> <p>A very useful resource for accessing primary source legal materials relating to free speech.</p> <p>The <a href="http://www.amazon.com/gp/product/1891136100?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;camp=1789&amp;creative=9325&amp;creativeASIN=1891136100">book</a><img src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;o=1&amp;a=1891136100" width="1" height="1" border="0" alt="" style="border:none!important;margin:0!important;" /> looks interesting too, although I have not read it as yet.</p> "OpenDNS" https://inpropriapersona.com/articles/opendns/ Thu, 28 Jun 2007 00:20:00 +0000 3d78bd063bb206b176cc7b81e436cf7f <div style="float:right;"><!-- OpenDNS button --><br /> <a title="Use OpenDNS to make your Internet faster, safer, and smarter." href="http://www.opendns.com/share/"><img src="http://images.opendns.com/buttons/use_opendns_155x52.gif" width="155" height="52" style="border:0;" alt="Use OpenDNS" /></a><br /> <!-- / end OpenDNS button --></div> <p>I have been using <a href="http://www.opendns.com/">OpenDNS</a> for quite a while now to increase the reliability and speed of Internet access. (&#8220;<a href="http://en.wikipedia.org/wiki/Domain_name_system">DNS</a>&#8221; is the system used to translate human-friendly names into computer-friendly numeric addresses.) It&#8217;s reliable and invisible. I&#8217;m only noticing it again now because I&#8217;ve found the Internet service provider I&#8217;m relying on at the moment to have less-than-stellar DNS responses, and the switch to OpenDNS has made a subtle, yet noticeable difference.</p> <p>What does OpenDNS improve?</p> <ul> <li>Helps identify &#8220;phishing&#8221; sites that have been set up to try to steal personal information (fake PayPal sites, for example).</li> <li>Can be set to block &#8220;adult&#8221; sites, if that makes sense on your network.</li> <li>It&#8217;s faster, both because of large caches and because they&#8217;ve spread out their servers geographically.</li> <li>It helps fix common URL typos. If it can&#8217;t fix it, you get a search page that tries to help (and has advertising, which accounts for their revenue).</li> <li>Shortcuts are available to make typing URLs easier. </li> <li>They specialize in DNS, and I&#8217;ve found their servers to be very reliable.</li> </ul> <p>Plus, OpenDNS is free, and they have <a href="http://www.opendns.com/start/">instructions</a> for many different network setups. Recommended.</p> "Search Warrants Required for Email (Maybe)" https://inpropriapersona.com/articles/search-warrants-required-for-email/ Wed, 27 Jun 2007 11:20:00 +0000 d6cc29c1a96293daecbaf27065d5d268 <p><a href="http://www.freedom-to-tinker.com/?p=1170">Freedom to Tinker notes</a>:</p> <blockquote><p>The Sixth Circuit Court of Appeals <a href="http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf">ruled</a> yesterday, in <em>Warshak v. U.S.</em>, that people have a reasonable expectation of privacy in their email, so that the government needs a search warrant or similar process to access it. The Court&#8217;s decision was swayed by amicus briefs submitted by <a href="http://www.eff.org/">EFF</a> and a group of law professors.</p></blockquote> <p><a href="http://www.volokh.com/archives/archive_2007_06_17-2007_06_23.shtml#1182208168">Orin Kerr writes</a>:</p> <blockquote><p>Today&#8217;s Fourth Amendment decision in <a href="http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf">Warshak v. United States</a> is astonishing on a number of fronts. If it stands on the books, it will revolutionize the way that Fourth Amendment challenges are brought; it will constitutionalize an area of law long thought to be statutory, invalidating some statutes along the way; and it will create the rather surprising result that Fourth Amendment protections are actually significantly <em>stronger</em> online than in the physical world.</p></blockquote> <p>See also:<a href="https://inpropriapersona.com/2007/03/katz-and-berger-and-reasonable.html"><span style="font-style: italic;"> Katz </span>and <span style="font-style: italic;">Berger</span> and a &#8220;Reasonable Expectation of Privacy&#8221;</a> and Randy Picker&#8217;s <a href="http://uchicagolaw.typepad.com/faculty/2007/06/regulating_the_.html"> Regulating the Cloud: Warshak v. United States</a></p> <p><strong>Update:<em> </em><span style="font-weight: normal;">an <em>en banc</em> 6th Circuit <a href="http://www.eff.org/deeplinks/2008/07/sixth-circuit-dodges-constitutional-question-email">dismissed the case</a> on procedural grounds, leaving the law unclear.</span></strong></p> "CIA and the Freedom of Information Act" https://inpropriapersona.com/articles/cia-and-the-freedom-of-information-act/ Wed, 27 Jun 2007 01:44:00 +0000 222ca0c44aebbb0b7db4efd1ed9ef575 <blockquote><p>The CIA has established this site to provide the public with an overview of access to CIA information, including electronic access to previously released documents. Because of CIA&#8217;s need to comply with the national security laws of the United States, some documents or parts of documents cannot be released to the public. In particular, the CIA, like other U.S. intelligence agencies, has the responsibility to protect intelligence sources and methods from disclosure. However, a substantial amount of CIA information has been and/or can be released following review. See &#8220;<a href="http://web.archive.org/web/20130127104205/http://www.foia.cia.gov:80/rights.asp">Your Rights</a>&#8221; for further details on the various methods of obtaining this information.</p></blockquote> <p>Several news stories have picked up on this, including <a href="http://www.nytimes.com/2007/06/27/washington/27cnd-cia.html?hp" id="s-C3RMIsDEOsG0YNr1x0uLeg:r-3_1117606593">Declassified CIA Archives Detail Illegal Activities</a> and <a href="http://www.nytimes.com/2007/06/27/washington/27assess.html" id="s-freE5e4IxvV4KydG8IcPEg:r-4_1117606593">Comparing Today’s Tactics With Those Used in the Past</a>, both from the New York Times, <a href="http://www.usnews.com/blogs/news-desk/2007/6/26/cia-airs-its-dirty-laundry.html" id="s-4sdjdixh9QqX3vUkKKWdXg:r-6_1117606593">CIA Airs Its Dirty Laundry</a> from U.S. News &amp; World Report, and <a href="http://weblogs.chicagotribune.com/news/politics/blog/2007/06/john_crewdson_and_stephen_j.html" id="s-WbOhrQX9LgL-z2mde8qJKg:r-7_1117606593">CIA displays &#8216;Family Jewels&#8217;</a> from the Chicago Tribune.</p> <p>While the cynic in me wonders if this isn&#8217;t just a PR attempt to distract us from current CIA activities, the historian in me is simply glad to have greater access to government documents and records.</p> "Update to Domain Name Change" https://inpropriapersona.com/news/2007/update-to-domain-name-change/ Tue, 19 Jun 2007 23:29:00 +0000 6af205ac24a12520d46b6e8d422ff079 <p>It looks like the domain name change has finally &#8220;taken.&#8221; Hopefully most things have been updated on the site itself, and URLs going to the old site should be redirected.</p> <p>Now I just need to finish moving myself, and I can get back to posting.</p> "Domain Name Change" https://inpropriapersona.com/news/2007/domain-name-change/ Sun, 10 Jun 2007 16:50:00 +0000 267e3a73881db47b07fc203381be99ae <p><span style="font-style: italic;">in propria persona</span> is moving from my domain (<a href="http://ekris.org/">ekris.org</a>) to its own home at <a href="https://inpropriapersona.com/"></a>. The move should be seamless, but there may be some limited disruptions over the next few days.</p> "14 Ways to Speed Up Your Site" https://inpropriapersona.com/articles/14-ways-to-speed-up-your-site/ Sun, 10 Jun 2007 01:09:00 +0000 4069b0153f2b16e6f39ca8889e5589fb <p><a href="http://web.archive.org/web/20131227162224/http://oreilly.com/catalog/covers/9780596514211_lrg.jpg"><img style="float: right; cursor: pointer; width: 200px; margin: 0 0 10px 10px;" src="http://web.archive.org/web/20131227162224/http://oreilly.com/catalog/covers/9780596514211_lrg.jpg" border="0" alt="" /></a>From <a href="http://stevesouders.com/">Steve Souders</a>, author of <a href="http://www.amazon.com/gp/product/0596529309?ie=UTF8&amp;tag=commentinprop-20&amp;linkCode=as2&amp;amp;camp=1789&amp;creative=9325&amp;creativeASIN=0596529309">High Performance Web Sites: Essential Knowledge for Front-End Engineers</a><img style="border: medium none!important; display: none; margin: 0!important;" src="http://www.assoc-amazon.com/e/ir?t=commentinprop-20&amp;l=as2&amp;amp;amp;amp;amp;o=1&amp;a=0596529309" border="0" alt="" width="1" height="1" />, comes the following useful 14 &#8220;<a href="http://stevesouders.com/hpws/">Rules for High Performance Web Sites</a>&#8220;:</p> <ul> <li><a class="noline" href="http://stevesouders.com/hpws/rule-min-http.php">Rule 1 &#8211; Make Fewer HTTP Requests</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-cdn.php">Rule 2 &#8211; Use a Content Delivery Network</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-expires.php">Rule 3 &#8211; Add an Expires Header</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-gzip.php">Rule 4 &#8211; Gzip Components</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-css-top.php">Rule 5 &#8211; Put CSS at the Top</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-js-bottom.php">Rule 6 &#8211; Move Scripts to the Bottom</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-expr.php">Rule 7 &#8211; Avoid CSS Expressions</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-inline.php">Rule 8 &#8211; Make JavaScript and CSS External</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-dns.php">Rule 9 &#8211; Reduce DNS Lookups</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-minify.php">Rule 10 &#8211; Minify JavaScript</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-redir.php">Rule 11 &#8211; Avoid Redirects</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-js-dupes.php">Rule 12 &#8211; Remove Duplicate Scripts</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-etags.php">Rule 13 &#8211; Turn Off ETags</a></li> <li><a class="noline" href="http://stevesouders.com/hpws/rule-ajax.php">Rule 14 &#8211; Make AJAX Cacheable and Small</a></li> </ul> <p>As he notes, fetching Web sites generally follows the &#8220;80-20&#8221; principle: 20% of the time a user waits to see a page is spent getting the actual HTML page. 80% of the time is spent on everything else.</p> <p>The book is still in the &#8220;rough cuts&#8221; stage, but sounds like an excellent and practical guide to making your site more usable and functional from a user perspective.</p> "Free Web Stats Evaluation" https://inpropriapersona.com/articles/free-web-stats-evaluation/ Sat, 09 Jun 2007 18:05:00 +0000 aa5d35df58d7a5e608aa5066fef44d57 <p>I am evaluating a variety of free statistics providers at the moment. If <span style="font-style:italic;">in propria persona</span> seems to be loading slowly, or you notice lots of calls to external sites (especially external tracking scripts), now you&#8217;ll know why.</p> <p>As of right now, these are the stats providers I am looking at:</p> <ul> <li><a href="http://www.sitemeter.com">Site Meter</a></li> <li><a href="http://www.statcounter.com">StatCounter</a></li> <li>Google <a href="http://www.google.com/analytics">Analytics</a></li> <li><a href="http://www.mybloglog.com">MyBlogLog</a></li> <li><a href="http://www.adleaf.com">AdLeaf</a></li> <li><a href="http://www.crazyegg.com">Crazy Egg</a></li> <li><a href="http://www.getclicky.com">Clicky</a></li> </ul> <p>Hopefully I&#8217;ll be able to develop some useful thoughts about these various providers for a future entry.</p> "On Intellectual Property" https://inpropriapersona.com/articles/on-intellectual-property/ Fri, 08 Jun 2007 23:51:00 +0000 f1a168df5cf32029e66b7bf2877c3a3f <div class="zemanta-img" style="margin: 1em; display: block;"> <div> <dl class="wp-caption alignright" style="width: 310px;"> <dt class="wp-caption-dt"><a href="http://commons.wikipedia.org/wiki/File:Thomas_Jefferson_Regular_Issue_1968-1c.jpg"><img title="Thomas_Jefferson_Regular_Issue_1968-1c.jpg Tho..." src="http://upload.wikimedia.org/wikipedia/commons/thumb/6/69/Thomas_Jefferson_Regular_Issue_1968-1c.jpg/300px-Thomas_Jefferson_Regular_Issue_1968-1c.jpg" alt="Thomas_Jefferson_Regular_Issue_1968-1c.jpg Tho..." width="300" height="362" /></a></dt> <dd class="wp-caption-dd zemanta-img-attribution" style="font-size: 0.8em;">Image via <a href="http://commons.wikipedia.org/wiki/File:Thomas_Jefferson_Regular_Issue_1968-1c.jpg">Wikipedia</a></dd> </dl> </div> </div> <p><a href="http://www.lessig.org/">Lawrence Lessig</a> <a href="http://web.archive.org/web/20080808122844/http://www.lessig.org/blog/archives/003791.shtml">writes:</a></p> <blockquote><p>Physical property and the intangible property we call copyright are different. Jefferson pointed to one difference. But the really crucial difference that I&#8217;ve been trying to get people to see is that physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government &#8212; which is saying a lot. And rather than continue sophomoric debates about who is &#8220;stealing&#8221; what, it&#8217;s about time that policymakers &#8212; and industry leaders &#8212; took responsibility for the inefficiency that copyright is.</p></blockquote> <p>Lessig is referring to Thomas Jefferson&#8217;s 1813 letter to Isaac McPherson, as quoted in <a href="http://cnx.org/content/m11795/latest/">A Primer in Modern Intellectual Property Law</a> by <a href="http://www.kelty.org/">Christopher Kelty</a>:</p> <blockquote><p>If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.</p></blockquote> <p>Intellectual property is intrinsically different from other forms of more tangible property. When it is shared, it is not (as Jefferson notes in his more poetic fashion) lessened, but rather increased. Thus, for example, if I were to download a Linux ISO, I have increased the reach and diffusion of the OS, but I have taken nothing away from the original copy possessed by the person I copied it from. This is in stark contrast to, for example, stealing someone&#8217;s car; if I do that, I possess it, and you do not. The property has been transferred and your interest in it diminished as mine is increased.</p> <p>This foundational difference is always good to keep in mind when analyzing, for example, <a href="http://en.wikipedia.org/wiki/Recording_Industry_Association_of_America">RIAA</a> press releases!</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=179be944-3467-464d-9df5-ccc9a9e73f19" alt="" /><span class="zem-script pretty-attribution"><script src="http://static.zemanta.com/readside/loader.js" type="text/javascript"></script></span></div> "“Webs of Significance,” Clifford Geertz" https://inpropriapersona.com/articles/webs-of-significance-clifford-geertz/ Fri, 08 Jun 2007 03:08:00 +0000 dacc52dc68d2fa0e2645739f4dc4f68e <a href="https://www.amazon.com/Interpretation-Cultures-Basic-Books-Classics/dp/0465097197?SubscriptionId=AKIAI7PBMXCBOMWDE5IQ&amp;tag=commentinprop-20&amp;linkCode=alb&amp;camp=2025&amp;creative=165953&amp;creativeASIN=0465097197" target="_blank" rel="nofollow"> <img style="float:right;margin:1rem;" src="https://images-na.ssl-images-amazon.com/images/I/41E2D8CYefL._SL160_.jpg" srcset="https://images-na.ssl-images-amazon.com/images/I/41E2D8CYefL.jpg" alt="The Interpretation Of Cultures (Basic Books Classics)" /> </a> <blockquote><p>An individual is bound up in a series of symbolic or mythic representations &#8212; &#8220;man is an animal suspended in webs of significance he himself has spun&#8221; (<a href="http://www.concurringopinions.com/archives/2006/11/in_memoriam_cli.html">Clifford Geertz</a>, <a href="http://www.amazon.com/gp/product/0465097197/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0465097197&amp;linkCode=as2&amp;tag=commentinprop-20&amp;linkId=YZW34DZSS63GQNEY">Interpretation of Cultures</a>) &#8212; which serve to generate and maintain meaning. </p> <p>Together, these symbols and myths provide the structure for our world-views. They constitute a cohesive narrative of existence, a kind mental map (or text) which functions, in much the same way as a geographic map, as a guide to the terrain of life. </p> <p>From them we generate ideas, interact with people, deal with new situations, and perform other activities we would be unable to do without a framework in which to make decisions. But inevitably, the categorization which is involved in the process of map-formation leaves distortions or even blank spaces in the map, giant regions of unexplored or inaccurate territory.</p></blockquote> <p>&#8212; From my thesis paper: <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556803">But That Speaking Makes It So</a>.</p> <p>Sadly, Clifford Geertz passed away in 2006. He was a foundational figure in my approach to research and writing. A &#8220;champion of <a title="Symbolic anthropology" href="http://en.wikipedia.org/wiki/Symbolic_anthropology">symbolic anthropology</a>,&#8221; Geertz focused on the symbolic basis of our lives. Culture, for Geertz, was &#8220;a system of inherited conceptions expressed in symbolic forms by means of which people communicate, perpetuate, and develop their knowledge about and attitudes toward life.&#8221;</p> <p>For more on Geertz (and &#8220;Webs of Significance&#8221;), see, for example:</p> <ul> <li><a href="http://www.long-sunday.net/long_sunday/2006/03/geertz_and_inte.html">Geertz and interpretation</a></li> <li><a href="http://www.nytimes.com/2006/11/01/obituaries/01geertz.html">Clifford Geertz, Cultural Anthropologist, is Dead at 80</a></li> <li><a href="http://www.ias.edu/newsroom/announcements/view/geertz-1926-2006.html">Clifford Geertz, 1926 &#8211; 2006</a></li> <li>Anthropologist Biographies: <a href="http://www.indiana.edu/%7Ewanthro/theory_pages/Geertz.htm">Clifford Geertz</a></li> </ul> "Is it OK to Share my WiFi? (Comcast)" https://inpropriapersona.com/articles/is-it-ok-to-share-my-wifi-comcast/ Mon, 04 Jun 2007 23:16:00 +0000 5b2ae87b0bfd315109c6bc386cecc0ab <p><em>Note: this post is from 2007. The terms of service and so on of Comcast have changed, though the general analysis is still reasonable.</em></p> <p>So, with the growth of <a href="http://www.fon.com/">FON</a> and <a href="http://www.whisher.com/">Whisher</a>, not to mention more informal sharing between neighbors, the question arises: is this legally acceptable from the perspective of the broadband subscriber? (<span style="font-style: italic;">Note: please do not rely on this for legal advice. I am a law student, not a lawyer, and certainly not your lawyer.</span>)</p> <p>In a broad sense, at least traditionally, there is no problem, as in general it&#8217;s perfectly acceptable to share one&#8217;s own property (and a subscription is a sort of property) with another. I could, after all, pass on my magazine to another person after I read it. I could even sell that magazine. (Note that contract law could, and does, modify this in various ways based on a private agreement between two or more parties.)</p> <p>Of course, in modern times, we&#8217;ve decided to make the situation more complex by granting greater protections to the &#8220;creator&#8221; of the work (or, actually, the entity that owns the copyright, which is usually not the original creator). Thus, cable companies are protected by &#8220;theft of service&#8221; laws which can carry criminal penalties, and music companies can bring civil actions for damages if you share the music you purchased with others.</p> <p>In a similar way, the broadband provider (I will use <a href="http://www.comcast.com/">Comcast</a> as my example here) has a significant legal interest in what happens to their service. While it is clear that if your neighbor tapped into your cable television they might be criminally liable, it does not appear that the same applies to a shared WiFi signal. (So far, &#8220;theft of service&#8221; laws do not appear to have been extended in this manner, and remain limited to cable television.)</p> <p>Thus we end up at contract law. So let&#8217;s look at the &#8220;acceptable use policies&#8221; and &#8220;subscriber agreements&#8221; that you agree to when you sign up for broadband service. Unlike civil or criminal penalties, it is unlikely that these contracts carry any monetary penalties with them if you violate them (contract law is not about punishment). Rather, the most likely result is termination of service, which may or may not come with additional payments due (not the same as punishment, even if it seems like it!).</p> <p><a href="http://www.whisher.com/">Whisher</a>, a WiFi sharing service <a href="https://inpropriapersona.com/2007/06/two-approaches-to-community-wifi.html">I looked at previously</a>, says this:</p> <blockquote><p>WiFi sharing is tolerated by most ISPs worldwide as long as you don&#8217;t resell your Internet access, which is something we are not doing within the Whisher community.<br /> We believe that sharing your WiFi with other members of the Whisher community is the same as sharing it with your family or a visiting friend. Since at Whisher everyone has a personal profile, which you can use to get to know people visiting your WiFi, sharing becomes a social activity, rather than anonymous access to the Internet by jumping on an open connection.</p></blockquote> <p>So is it OK under Comcast&#8217;s contract? Let&#8217;s look at the <a href="http://web.archive.org/web/20080509112924/http://www.comcast.net/terms/use.jsp">Comcast High-Speed Internet Service Subscriber Agreement</a> and see if we can parse out something helpful:</p> <p><span style="font-weight: bold;">Prohibited Uses and Activities</span></p> <blockquote><p>Prohibited uses include, but are not limited to, using the Service, Customer Equipment, or the Comcast Equipment to:<br /> ix. resell the Service or otherwise make available to anyone outside the Premises the ability to use the Service (i.e. wi-fi, or other methods of networking), in whole or in part, directly or indirectly, or on a bundled or unbundled basis. The Service is for personal and non-commercial use only and you agree not to use the Service for operation as an Internet service provider or for any business enterprise or purpose, or as an end-point on a non-Comcast local area network or wide area network.</p></blockquote> <p>Essentially, this clause forbids &#8220;mak[ing] available&#8221; the &#8220;Service&#8221; (that is, your Internet access) to anyone outside the &#8220;Premises.&#8221; Note though, that, as Whisher suggested, Comcast appears much more concerned with commercial sharing or reselling, and more tolerant of personal, non-commercial use. Since most people do share with guests, sharing with neighbors may well be OK as well, provided you don&#8217;t charge them anything for the privilege, and especially provided you don&#8217;t make money on the deal.</p> <p>In short, I think Comcast would like to sell service to everyone independently. But this clause allows them to flex a little, provided you don&#8217;t try to make money at their expense. So I think Whisher has the right idea. However, this also pretty clearly gives Comcast the right to change its mind if it doesn&#8217;t like your particular way of sharing. (Also note that a court might not back Comcast on this 100%, but that&#8217;s both tricky and expensive to find out. And I strongly suspect all courts would uphold the &#8220;no commercial reselling&#8221; provision.)</p> <p><span style="font-weight: bold;">Security</span></p> <blockquote><p>You are responsible for any misuse of the Service, even if the misuse was committed by a friend, family member, or guest with access to your Service account.</p></blockquote> <p>Just a heads up from Comcast that if you do share, you are responsible for what your guests do. So if they share copyrighted material, Comcast can shut you down (under their contract). (But note: <span style="font-style: italic;">this is only under Comcast&#8217;s contract,</span> and doesn&#8217;t impact your legal rights if someone else sues you, for example. That&#8217;s more complicated, and not well settled.)</p> <p>So, remember, even if they don&#8217;t enforce this, or some part isn&#8217;t legally OK, that doesn&#8217;t mean they can&#8217;t enforce the rest or start enforcing something later:</p> <blockquote><p>The failure of Comcast or its suppliers to enforce this AUP, for whatever reason, shall not be construed as a waiver of any right to do so at any time. You agree that if any portion of this Policy is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.</p></blockquote> <p>In summary: sharing with Whisher or FON is likely tolerated by an ISP with an agreement like Comcast&#8217;s, but they have full rights to cut you off if they don&#8217;t like it, or don&#8217;t like your particular sharing, or don&#8217;t like what others you share with are doing&#8230; so keep that in mind.</p> <p>See also:</p> <ul> <li><a href="https://inpropriapersona.com/2007/07/is-it-ok-to-share-my-wifi-clearwire.html">Is it OK to Share My WiFi? (Clearwire)</a></li> <li><a href="http://www.cearta.ie/2007/06/is-it-ok-to-share-wi-fi/">Is it ok to share wifi?</a> (From the Irish blog <a href="http://www.cearta.ie/">caerta.ie</a>.)</li> <li><a href="https://inpropriapersona.com/2007/06/two-approaches-to-community-wifi.html">Two Approaches to Community WiFi Sharing</a></li> </ul> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=21ac1014-d86f-40d4-aa61-4ae90a4d56fc" alt="" /></div> "Two Approaches to Community WiFi Sharing" https://inpropriapersona.com/articles/two-approaches-to-community-wifi-sharing/ Mon, 04 Jun 2007 04:01:00 +0000 f48a029ccf97e0e89faaa73264ee6a7b <p>Two different, broad-based approaches to community-based WiFi sharing:</p> <dl> <a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RmMv18Ue_kI/AAAAAAAAADc/XqKgnEUULhw/s1600-h/Picture+2.png"><img style="float:left;cursor:hand;margin:0 10px 10px 0;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RmMv18Ue_kI/AAAAAAAAADc/XqKgnEUULhw/s200/Picture+2.png" border="0" /></a></p> <dt><a href="http://www.whisher.com/">Whisher</a></dt> <dd>You don&#8217;t need to leave your WiFi open in order to share it with others. Simply enable encryption on your access point or router (WEP/WPA) and Whisher will do the rest. From this time onwards only you and other Whisher members will have access to the Internet through your WiFi.</dd> <dd>Whisher takes a software-based approach to community-based sharing, and supports any router, Macs, PCs and Linux. The software on Macintosh is elegant and usable, although I found it a trifle unstable, slow and processor intensive when setting it up. So far I haven&#8217;t succeeded in registering my home access point as my own&#8230;</dd> <p><a href="http://1.bp.blogspot.com/_NqBoNhiSDYI/RmMwAcUe_lI/AAAAAAAAADk/IdDXBrwe0kU/s1600-h/Picture+1.png"><img style="float:left;cursor:hand;margin:0 10px 10px 0;" src="http://1.bp.blogspot.com/_NqBoNhiSDYI/RmMwAcUe_lI/AAAAAAAAADk/IdDXBrwe0kU/s200/Picture+1.png" border="0" /></a></p> <dt><a href="http://www.fon.com/">FON</a></dt> <dd>FON provides inexpensive routers (&#8220;La Fonera&#8221;) that can be easily connected to your home broadband connection. In return for sharing your own connection, you can either make money on visitors (useful for cafes and so on), or get free access at other FON access points. </dd> <dd>From FON:</p> <ul> <li>Easy to install 54 Mbps wireless router <li>Get free WiFi access wherever you find FON <li>Decide how much bandwidth you share <li>Share safely and keep your own private connection <li>Enjoy our community features and meet other FONeros </ul> </dd> <dd>La Fonera works well. It&#8217;s simple to setup and reliable, supporting both an internal, private network and an outside network accessible to visitors. The only downside? At least in the broader San Francisco area, I&#8217;ve never found another Fon access point to use, although the Fon maps show some. </dd> </dl> "FISA/CALEA and “Lawful Intercept” Technologies" https://inpropriapersona.com/articles/fisacalea-and-lawful-intercept-technologies/ Sat, 02 Jun 2007 04:48:00 +0000 28b55bb1f0ceb84e3472ff2623fe4231 <p>As I <a href="https://inpropriapersona.com/2007/05/reminder-monday-is-wiretap-internet-day.html">noted earlier</a>, May 14th was the <a href="http://www.fcc.gov/calea/">official deadline</a> for <a href="http://en.wikipedia.org/wiki/Communications_Assistance_for_Law_Enforcement_Act">CALEA</a> compliance for a number of industries. How, you may be wondering, does one implement such a thing?</p> <blockquote><p>These solutions are typically divided into three key functions: access, mediation and collection. The access function comprises existing network elements that are provisioned to provide call detail records or call content for target individuals. Alternatively, passive probes may be used where no such capability exists on the access element. The mediation (or delivery) function is used for warrant provisioning, communicating with the access elements and probes and formatting call data for delivery to the law enforcement agency (LEA). The collection function equates to products deployed by LEAs for the appropriate collection and analysis of call records and content.</p></blockquote> <p>&#8212; <a href="http://web.archive.org/web/20090326071203/http://www.ss8.com:80/li.php?">Complete &#8220;Lawful Intercept&#8221; Solutions</a></p> <p>Scott Coleman writes:</p> <blockquote><p>I&#8217;ve talked about probes in the past, both in the context of Active vs. Passive and with regard to doing VoIP intercept. And now as the May 14th date for compliance approaches for both broadband and VoIP providers, I&#8217;m taking a look at another category of probe, the Mediated Probe, since they seem to be popular with the ISPs.</p></blockquote> <p>&#8212; <a href="http://demystifyingli.blogspot.com/">http://demystifyingli.blogspot.com/</a></p> <p><a href="http://www.pen-link.com/">Pen-Link</a> provides a complete product for CALEA compliance:</p> <blockquote><p>LINCOLN provides a complete system solution for any CALEA-based or facilities-based (local loop) approach to electronic surveillance. Our system encompasses hardware, software, and services to meet all of the intercept needs of an LEA.</p></blockquote> <p>&#8212; <a href="http://www.pen-link.com/Default.htm?/products/lincoln.htm">LINCOLN by Pen-Link</a></p> <p>Finally, <a href="http://www.netequalizer.com/">NetEqualizer</a> provides bandwidth shaping based on a Linux platform, and has added minimal CALEA compliance to its services:</p> <blockquote><p>NetEqualizer appliances are bandwidth shaping systems designed for voice and data networks. The flexible, scalable and cost-effective bandwidth control products can be deployed in both corporate and service provider networks. NetEqualizer is plug-and-play, installing in minutes. NetEqualizer appliances automatically shape traffic based on built-in fairness rules. This approach allows network administrators and operators to quickly and easily bring network traffic into balance without having to build and manage extensive policy libraries and with no changes to existing network infrastructure.</p> <p>We provide a network probe with the following capabilities:</p> <ul> <li>It will allow an ISP or other operator to comply with a basic warrant for information about a user by capturing and sending IP communications in real time to a third party.</li> <li>Communication may be captured by headers or headers and content.</li> </ul> </blockquote> <p>&#8212; <a href="http://www.netequalizer.com/caleafaq.php">NetEqualizer&#8217;s CALEA FAQ</a></p> <p>Interestingly, NetEqualizer&#8217;s software is based on an open-source core running on the Linux platform. I can&#8217;t tell if the CALEA-compliant &#8220;probe&#8221; functionality is available too as an open-source add-on. See <a href="http://www.bandwidtharbitrator.com/">http://www.bandwidtharbitrator.com/</a></p> "Tim Wu, “On Copyright’s Authorship Policy”" https://inpropriapersona.com/articles/tim-wu-on-copyrights-authorship-policy/ Thu, 31 May 2007 20:14:00 +0000 98a6caf3291620a97f6d4914a84a6e8a <p><a href="http://www.timwu.org/wu-std.jpg"><img style="float:right;cursor:pointer;width:80px;height:105px;margin:0 0 10px 10px;" src="http://www.timwu.org/wu-std.jpg" alt="" border="0" /></a><a href="http://www.timwu.org/about.html">Tim Wu</a>, professor at Columbia Law School, has an intriguing paper available entitled, &#8220;On Copyright&#8217;s Authorship Policy&#8221;:</p> <div> <blockquote><p>It has long been the stated aspiration of copyright to make authors the masters of their own destiny. Yet more often than not, the real subject of American copyright is distributors—book publishers, record labels, broadcasters, and others—who control the rights, bring the lawsuits, and take copyright as their industries&#8217; &#8220;life-sustaining protection.&#8221; Modern American copyright history revolves heavily, though not entirely on distributors, either asking for more industry protection, or fighting amongst themselves. </p></blockquote> <p><a href="http://web.archive.org/web/20080706150529/http://www.boingboing.net/2007/05/30/copyrights_authorshi.html">BoingBoing</a> comments:</p> <blockquote><p>Tim&#8217;s point is that copyright ends up choosing what kind of authors are allowed to make art, and which ones aren&#8217;t. For example, extending copyright over sampling—but not over reproducing distinctive licks or melodic snippets—means that mashup artists&#8217; music is illegal, but the white skiffle and R&amp;B artists who adapted black music for their own (the Rolling Stones, Elvis and the Beatles, for example) get to make all the music they want.</p></blockquote> </div> "Blog Redesign" https://inpropriapersona.com/articles/blog-redesign/ Mon, 28 May 2007 18:34:00 +0000 4588b8ab19ae77b5af384bd2e521744e <p><a href="http://2.bp.blogspot.com/_NqBoNhiSDYI/RlshnXgHYBI/AAAAAAAAADU/5Lfu3HdW6rU/s1600-h/old-ekris-blog.png"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://2.bp.blogspot.com/_NqBoNhiSDYI/RlshnXgHYBI/AAAAAAAAADU/5Lfu3HdW6rU/s200/old-ekris-blog.png" alt="" border="0" /></a><br /> <span style="font-style:italic;">in propria persona</span> has been on temporary hiatus for a week or two while I finished finals and worked on my law review competition entry (due on Tuesday). Since this involved considerable mental energy, I&#8217;ve kept myself amused through a blog redesign. (<a href="http://lawschool.ekris.org/">Notes from Law School</a> will be keeping the old design for the time being.)</p> <p>Of note in the new design:</p> <ul> <li>An updated color scheme blended with Blogger&#8217;s top bar.</li> <li>3-column layout provided by <a href="http://developer.yahoo.com/yui/grids/">Yahoo! UI Grids</a>. </li> <li>A main column with blog entries that includes useful tools at the bottom of each post to add to various online services (<a href="http://www.digg.com/">Digg</a>, etc.), plus some <a href="http://www.feedburner.com/">FeedBurner</a> FeedFlares (such as Sphere&#8217;s related content). </li> <li>Small middle column featuring a variety of advertisers (if I am to advise people on the use of these networks, I need to use them myself). This column starts out faded to keep it less obtrusive, then becomes more visible when moused over.</li> <li>The far right column has various blog tools, including search (two varieties, one Google based, one Blogger based), entry categories, <a href="http://www.technorati.com/">Technorati</a> links, Google suggestions, and <a href="http://www.mybloglog.com/">MyBlogLog</a> entries. </li> </ul> <p>I have reduced the <a href="http://www.snap.com/">Snap</a> previews and eliminated <a href="http://www.mywire.com/">MyWire</a> feeds for the time being, since I felt they were adding distractions without sufficient value. I am still using Snap, but in a less obtrusive way (icons only, and essentially only on posts). In addition, the <a href="http://www.yahoo.com/">Yahoo!</a> menu bar I had across the top has been removed, at least temporarily. I may look to integrate a more tab-based menu later.</p> <p>Of course, I will be tweaking this design going forward, looking for more features to improve connections between my postings and other resources on the Web, improve usability of my blog, and learn (and share) new tools and technologies.</p> "My Top 10 Free Blogging Tools" https://inpropriapersona.com/articles/my-top-10-free-blogging-tools/ Fri, 18 May 2007 21:42:00 +0000 912b09ded13a1accc44ae8537f8329a0 <p>1. <a href="http://www.zoneedit.com/">ZoneEdit</a><br /> Without ZoneEdit, I wouldn&#8217;t have a custom domain&#8230; they provide the DNS hosting that changes <a href="http://www.ekris.org/">ekris.org</a> into a machine-preferred IP address. And it&#8217;s free. And reliable (if not pretty).</p> <p>2. <a href="http://www.google.com/a/">Google Apps</a><br /> Google Apps hosts my main page, some static graphics, and some of my longer documents. It also provides all of my email functionality for the ekris.org domain. I find the page editor to be clunky, limited, and rather frustrating, but then again, I don&#8217;t need much right now, and it&#8217;s good enough to get the job done.</p> <p>3. <a href="http://code.google.com/">Google API</a><br /> The Google API provides the backbone of the &#8220;What&#8217;s Related&#8221; functionality in the left navigation area and at the bottom of my main page, the &#8220;Google Related &gt;&gt;&#8221; search at the bottom of each post&#8217;s individual page, and the in-page focused search function on my main entry page.</p> <p>4. <a href="http://www.blogger.com/">Blogger</a> (by Google&#8230;)<br /> Provides the blog hosting for both &#8220;Commentary&#8221; and &#8220;Notes from Law School.&#8221; Free, functional, and rather more flexible than I thought, if one doesn&#8217;t mind messing with the raw scripting that drives the templates. Perhaps not quite as flexible as WordPress (which I once hosted at home, but which fell victim to a cross-country move and issues with home broadband), but &#8220;good enough.&#8221; Did I mention it&#8217;s free?</p> <p>5. <a href="http://www.google.com/adsense/">Google AdSense</a><br /> While not a core part of my tools, I have found AdSense to be well-designed and interesting, and to provide another glimpse at useful related content around the Web. Hopefully this proves useful to visitors to the site&#8230; more importantly, I am using AdSense so I can better advise clients on its utility in future. It is, of course, better than free.</p> <p>6. <a href="http://www.google.com/analytics/">Google Analytics</a><br /> Gives a useful, rather sophisticated and, with the new interface, rather elegant look at visitors: who they are, where they&#8217;re coming from, and so on.</p> <p>7. <a href="http://www.sitemeter.com/">SiteMeter</a><br /> Another visitor tracking site, this one is bare-bones, but provides a quick look at visitor stats and info.</p> <p>8. <a href="http://www.feedburner.com/">FeedBurner</a><br /> Provides some useful little tools to supplement blogs. Its prime focus is managing feeds (thus the name). I use this primarily to add the links to Sphere: Related Content and Add This! to the bottom of each post.</p> <p>9. <a href="http://www.technorati.com/">Technorati</a><br /> Connects blogs with each other and provides useful search functionality. Also gives useful linking statistics that shows the connections between blogs and who&#8217;s linking to whom.</p> <p>10. <a href="http://creativecommons.org/">Creative Commons</a><br /> Keeps my work protected yet shareable.</p> <p>The jury is still out on&#8230;</p> <p><a href="http://www.snap.com/">Snap</a> previews<br /> Provides a quick look at where a destination URL is taking you. Is it more distracting than useful?</p> <p><a href="http://www.mywire.com/acct/PartnerAccountInfo.do">SmartMatch</a> by <a href="http://www.mywire.com/">MyWire</a><br /> I&#8217;m using this to populate &#8220;Related Articles&#8221; in the sidebar. So far I&#8217;m not convinced at how relevant this articles are, so we&#8217;ll see how it goes over the next week or two.</p> "YouTube as a PR Outlet" https://inpropriapersona.com/articles/youtube-as-a-pr-outlet/ Fri, 18 May 2007 08:08:00 +0000 f8a38229dbc978b0e765f1da39fab128 <p><a href="http://theflack.blogspot.com/">The Flack</a> posts an insightful look into the use of YouTube for PR battles in article entitled &#8220;<a href="http://theflack.blogspot.com/2007/05/beeb-battles-back.html">The Beeb Battles Back</a>&#8220;:</p> <blockquote><p>One technique we used to counter the news program&#8217;s growing quest for drama entailed taping the taping. In exchange for access to our newsmaker client, we demanded (and were granted) the right to film the interview. When the news crews&#8217; cameras shut down, so did ours. We would then have unedited footage to make available on an as needed basis, but with few outlets on which the public could view it.</p> <p>Flash forward to today. &#8220;The Lede&#8221; in today&#8217;s <em>New York Times</em> online <a href="http://thelede.blogs.nytimes.com/2007/05/14/scientologists-ambush-the-bbc/">reports</a> on how the Scientologists ambushed a BBC &#8220;<a href="http://news.bbc.co.uk/1/programmes/panorama/default.stm">Panorama</a>&#8221; reporter, capturing him on digital video in an especially <a href="http://www.prdisasters.com/?p=187">unflattering </a>light. The church of Cruise, Travolta and others then built a <a href="http://www.bbcpanorama-exposed.org/">website </a>(albeit, a cheesy one), and turned to <a href="http://www.youtube.com/watch?v=hxqR5NPhtLI&amp;eurl=">YouTube</a> to pre-emptively discredit the Beeb in advance of the venerable news organization&#8217;s forthcoming documentary on the cult-like organization.</p></blockquote> <p>This reminds me of work I was involved in at a non-profit to counter a strongly biased story in the local paper via a special Web site, and the challenges we had in getting our (counter-)message out. A challenge to say the least&#8230;</p> <p>Getting out in front is hard work. So is putting a message out with lawsuits pending and lawyers vetting our side&#8217;s message, something the local paper did not have to deal with. The key factors that helped us?</p> <ul> <li>Staying positive</li> <li>Avoiding reactionary, knee-jerk responses</li> <li>Keeping our mission in mind (saving lives!)</li> <li>Finding respected people to speak out on our behalf</li> </ul> <p>If YouTube had existed back then, we certainly would have tried to make use of it.</p> <p>Overall, it was a difficult, but rewarding experience, and played a significant role in my choosing to go to law school.</p> "Jurisdiction and the Internet: CivPro meets the Web" https://inpropriapersona.com/articles/jurisdiction-and-the-internet-civpro-meets-the-web/ Fri, 18 May 2007 05:50:00 +0000 18d705c4fb7fd8064f36c201fa44ea1f <p><a href="http://www.bretttrout.com/">Brett Trout</a> (of Blawg IT) writes in &#8220;<a href="http://web.archive.org/web/20080820063555/http://blog.bretttrout.com/2007/05/internet-jurisdiction-win-battle-win.html">Internet Jurisdiction: Win the Battle, Win the War</a>&#8220;:</p> <blockquote><p>Internet law opens up more jurisdictional possibilities than probably any other area of the law. Even if the other side may have a better potential position on the issue of jurisdiction, I have had defendants unintentionally and irreparably destroy that position through tactical error. While the law allows remedy for many errors, waiving personal jurisdiction is not one of them. A big mistake like that in a small Internet lawsuit means it is time to get out the checkbook.</p></blockquote> <p>As a first-year law student, I sometimes forget that the &#8220;black-letter law&#8221; we&#8217;re learning in basic classes like <a href="http://en.wikipedia.org/wiki/Civil_procedure">CivPro</a> (like <a href="http://en.wikipedia.org/wiki/Personal_jurisdiction">personal jurisdiction</a>) are not as settled as they may sometimes appear. (See also: &#8220;<a href="http://lawschool.ekris.org/search/label/Civil%20Procedure">Civil Procedure</a>&#8221; in my <a href="http://lawschool.ekris.org/">Notes from Law School</a> blog.)</p> "Meraki “Free the Network” San Francisco Project Grows" https://inpropriapersona.com/articles/meraki-free-the-network-san-francisco-project-grows/ Mon, 14 May 2007 20:37:00 +0000 91ac4b71b9cdbcf7127960aaddebf3df <p><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RkjKRuNOPXI/AAAAAAAAADM/TiV4rQEfgPI/s1600-h/meraki-map-may-14-2007.png"><img style="float:left;cursor:pointer;margin:10pt 10pt 10px 10px;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RkjKRuNOPXI/AAAAAAAAADM/TiV4rQEfgPI/s200/meraki-map-may-14-2007.png" alt="" border="0" /></a></p> <blockquote><p>We&#8217;ve been busy meeting volunteers, installing Meraki Mini repeaters, and arranging for Meraki sponsored DSL lines to be installed to add bandwidth to the overall network. In the process, we&#8217;ve met many excited and motivated San Franciscans and we are really overwhelmed by the support we continue to receive.<br /> . . .<br /> Each day we see new visitors and more and more people are signing up to volunteer. You can keep track of the current status of the network by visiting <a href="http://sf.meraki.net/overview">http://sf.meraki.net/overview</a>. It&#8217;s been really exciting to watch the SF network organically grow and to receive positive feedback from San Franciscans who use the network daily.</p></blockquote> <p>For more about the project, see <a href="http://sf.meraki.net/">Meraki &#8220;Free the Net&#8221; SF</a>.</p> "“NFL fumbles DMCA takedown battle, could face sanctions”" https://inpropriapersona.com/articles/nfl-fumbles-dmca-takedown-battle-could-face-sanctions/ Sun, 13 May 2007 23:40:00 +0000 1442ee4d0d4dda1629f0daaed26e0811 <blockquote><p>It&#8217;s no secret that some content owners don&#8217;t seem to understand how the <a href="http://en.wikipedia.org/wiki/DMCA">DMCA</a> works&#8211;that, or they simply don&#8217;t care when sending mass takedown notices. This seems to be the case with the recent saga of legal maneuvers between the National Football League (NFL) and Brooklyn Law School professor <a href="http://wendy.seltzer.org/">Wendy Seltzer</a>. The two have been going back and forth with DMCA-related &#8220;requests&#8221; since early February&#8211;with YouTube stuck in between&#8211;and in the process, the NFL itself appears to have violated the DMCA.</p></blockquote> <p>via <a href="http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedown-battle-could-face-sanctions.html">ars technica</a></p> "Reminder: Monday is Wiretap the Internet Day" https://inpropriapersona.com/articles/reminder-monday-is-wiretap-the-internet-day/ Sun, 13 May 2007 20:33:00 +0000 38e537a78478afa76cc4396b45e1b039 <p>Kevin Poulsen <a href="http://blog.wired.com/27bstroke6/2007/05/reminder_monday.html">notes</a> on Threat Level &#8211; Wired Blogs that</p> <blockquote><p>May 14th is the <a href="http://www.fcc.gov/calea/">official deadline</a> for cable modem companies, DSL providers, broadband over powerline, satellite internet companies and <a href="http://www.acenet.edu/AM/Template.cfm?Section=Search&amp;template=/CM/HTMLDisplay.cfm&amp;ContentID=19589">some</a> universities to finish wiring up their networks with FBI-friendly surveillance gear, to comply with the FCC&#8217;s expanded interpretation of the Communications Assistance for Law Enforcement Act.</p></blockquote> <p>What is CALEA, you ask?</p> <ul> <li>Wikipedia: <a href="http://en.wikipedia.org/wiki/Communications_Assistance_for_Law_Enforcement_Act">Communications Assistance for Law Enforcement Act</a>. </li> <li>Electronic Frontier Foundation: <a href="http://www.eff.org/Privacy/Surveillance/CALEA/">CALEA</a>. </li> <li>And from the pro-CALEA camp: <a href="http://www.calea.org/">CALEA Online</a>. </li> <li>&#8220;<a href="http://web.archive.org/web/20090318063813/http://www.ekris.org:80/WiretapsInternet.html">Wiretaps in the Internet Age</a>,&#8221; a paper I wrote with background on CALEA and wiretapping in general.</li> </ul> "Simple, Elegent and Useful Ajax Code" https://inpropriapersona.com/articles/simple-elegent-and-useful-ajax-code/ Sun, 13 May 2007 06:39:00 +0000 7e903cffbf4a433b696b1f02bbed89b3 <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/Rkdd5ONOPWI/AAAAAAAAADE/mQiQ0YRsRsM/s1600-h/mini-ajax.png"><img style="float:right;cursor:pointer;margin:0 0 10px 10px;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/Rkdd5ONOPWI/AAAAAAAAADE/mQiQ0YRsRsM/s200/mini-ajax.png" alt="" border="0" /></a>Billed as a &#8220;showroom of nice looking simple downloadable dhtml and ajax code,&#8221; <a href="http://www.miniajax.com/">MiniAjax.com</a> delivers exactly that. Recommended.</p> "Top 10 Steps to Make the U.S. House More Open" https://inpropriapersona.com/articles/top-10-steps-to-make-the-u-s-house-more-open/ Sun, 13 May 2007 02:30:00 +0000 e0cfd2fc384e6a50e7c2c83484f0feaa <p>The <a href="http://www.theopenhouseproject.com/about/">Open House Project</a> is working to open up the <a href="http://www.house.gov/">U.S. House</a> to new technologies of Web-based access:</p> <blockquote><p>We&#8217;re trying to find the least intrusive ways to open up the House, the low-hanging fruit where the internet and Congressional procedures come together.</p></blockquote> <p>Their <a href="http://www.theopenhouseproject.com/report/openhouseproject_may8_07.pdf">report</a> to Representative Pelosi identifies 10 steps to take to make the House more open and accessible to citizens:</p> <ol> <li>Legislation database. <ul> <li>Publish legislative data in structured formats.</li> </ul> </li> <li>Preserving congressional information. <ul> <li>Protect congressional information through archiving and distribution.</li> </ul> </li> <li>Congressional committees. <ul> <li>Recognize committees as a public resource by making committee information available online.</li> </ul> </li> <li>Congressional Research Service. <ul> <li>Share nonpartisan research beyond Congress.</li> </ul> </li> <li>Web access for members. <ul> <li>Permit members to take full advantage of Internet resources.</li> </ul> </li> <li>Citizen journalism access. <ul> <li>Grant House access to non-traditional journalists.</li> </ul> </li> <li>The Office of the Clerk of the House. <ul> <li>Serve as a source for digital disclosure information.</li> </ul> </li> <li>The Congressional Record. <ul> <li>Maintain the veracity of a historical document.</li> </ul> </li> <li>Congressional video. <ul> <li>Create open video access to House proceedings.</li> </ul> </li> <li>Coordinating Web standards. <ul> <li>Commit to technology reform as an administrative priority.</li> </ul> </li> </ol> <p>Republican David All and Democrat Philip de Vellis have collaborated on a video to promote the recommendations:<br /> <a class="abp-objtab visible ontop" title="Click here to block this object with Adblock Plus" href="http://www.youtube.com/v/ODsWnFaNFLY"></a><a class="abp-objtab visible ontop" title="Click here to block this object with Adblock Plus" href="http://www.youtube.com/v/ODsWnFaNFLY"></a></p> "Top Macintosh Utilities" https://inpropriapersona.com/articles/top-macintosh-utilities/ Sat, 12 May 2007 09:40:00 +0000 5fba13a0c5f217ab70891fd2382e7f46 <p><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RkU1IeNOPNI/AAAAAAAAAB8/WiWWcU-Vxtk/s1600-h/Lifehacker-Transp.png"><img style="float:left;cursor:pointer;margin:0 10px 10px 0;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RkU1IeNOPNI/AAAAAAAAAB8/WiWWcU-Vxtk/s200/Lifehacker-Transp.png" alt="" border="0" /></a><br /> From <a href="http://lifehacker.com/">Lifehacker</a> comes a list of <a href="http://lifehacker.com/software/lifehacker-top-10/top-10-mac-utilities-259649.php">Top 10 Macintosh utilities</a>:</p> <blockquote><p>It&#8217;s not always the full-blown software applications that make the biggest difference on your computer; often it&#8217;s the small do-one-thing-well utilities that enhance our computing experience that much more.</p></blockquote> <ul> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1850402">MagiCal (calendar)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1850381">MenuMeters (system monitor)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1850360">Ejector (disk dismounter)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1849999">AppDelete (software uninstaller)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1849939">RCDefaultApp (file associations)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1849879">Hazel (autmated folder actions)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1849798">GeekTool (desktop overlay)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1849806">Growl (system notifications)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1849790">Text Expander (text substitution)</a></li> <li><a href="http://lifehacker.com/photogallery/LH-Top-10-Mac-utilities/1849769">Quicksilver (keyboard interface)</a></li> </ul> <p>Here&#8217;s a few of my personal favorites:</p> <p><a href="http://3.bp.blogspot.com/_NqBoNhiSDYI/RkUzpeNOPJI/AAAAAAAAABc/0y-wwuuY_30/s1600-h/Preview-Transp.png"><img style="float:left;cursor:pointer;margin:0 10px 10px 0;" src="http://3.bp.blogspot.com/_NqBoNhiSDYI/RkUzpeNOPJI/AAAAAAAAABc/0y-wwuuY_30/s200/Preview-Transp.png" alt="" border="0" /></a> Preview.app, the most ubiquitous, most useful, most under-appreciated application on my Macintosh. I use it everyday, all the time, for all sorts of image types, from PDF to TIFF.</p> <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RkUzvuNOPKI/AAAAAAAAABk/XS5Euu-JsEc/s1600-h/SlimBat-Transp.png"><img style="float:right;cursor:pointer;margin:0 10px 10px 0;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RkUzvuNOPKI/AAAAAAAAABk/XS5Euu-JsEc/s200/SlimBat-Transp.png" alt="" border="0" /></a>Makes for a much more attractive battery display, taking up only a sliver of space instead of an elephant-sized chunk. Available from:<a href="http://www.orange-carb.org/SBM/"> http://www.orange-carb.org/SBM/</a></p> <p><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RkUz1uNOPLI/AAAAAAAAABs/82Gr5q481QQ/s1600-h/VLC-Transp.png"><img style="float:left;cursor:pointer;margin:0 10px 10px 0;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RkUz1uNOPLI/AAAAAAAAABs/82Gr5q481QQ/s200/VLC-Transp.png" alt="" border="0" /></a>Another favorite of those who wish to view their video without worrying about format or anything else. Regardless of the format, VLC <span style="font-style:italic;">just works.</span> Available from:<a href="http://www.videolan.org/vlc/"> http://www.videolan.org/vlc/</a></p> <p><a href="http://1.bp.blogspot.com/_NqBoNhiSDYI/RkUz6-NOPMI/AAAAAAAAAB0/OonmtXwrtq4/s1600-h/Mozy-Transp.png"><img style="float:right;cursor:pointer;margin:0 10px 10px 0;" src="http://1.bp.blogspot.com/_NqBoNhiSDYI/RkUz6-NOPMI/AAAAAAAAAB0/OonmtXwrtq4/s200/Mozy-Transp.png" alt="" border="0" /></a>Newly available for Mac, Mozy is still technically in beta. At first, it gradually reduced the size of my data stored remotely&#8230; a few megabytes less each day&#8230; but in the last few weeks, it&#8217;s been rock solid. It&#8217;s nice to know my key documents are automatically stored off-site, several times a day. (I also irregularly back everything up to a local server, too, just in case.) Get it from: <a href="http://mozy.com/">http://mozy.com/mozy/macmozy</a></p> "Followup on digg.com, AACS, and “laws for bloggers”" https://inpropriapersona.com/articles/followup-on-digg-com-aacs-and-laws-for-bloggers/ Thu, 10 May 2007 20:03:00 +0000 9b51584f560dd7f6b8b0707e97a9bf2b <p>In an interesting article entitled &#8220;<a href="http://uchicagolaw.typepad.com/faculty/2007/05/digg_this_what_.html">Digg This?: What Laws Must We Obey?</a>&#8221; at &#8220;The Faculty Blog&#8221; from the University of Chicago, a law professor not intimately involved with the <a href="http://en.wikipedia.org/wiki/DMCA">DMCA</a> and <a href="http://en.wikipedia.org/wiki/Web_2.0">Web 2.0</a><a href="http://4.bp.blogspot.com/_NqBoNhiSDYI/RkODrONOPCI/AAAAAAAAAAk/hVbQK3x8prw/s1600-h/Picture+4.png"><img style="float:left;cursor:pointer;width:124px;height:119px;margin:0 10px 10px 0;" src="http://4.bp.blogspot.com/_NqBoNhiSDYI/RkODrONOPCI/AAAAAAAAAAk/hVbQK3x8prw/s200/Picture+4.png" alt="" border="0" /></a> writes:</p> <blockquote><p>As to law, as <a href="http://www.digg.com/">Digg</a>&#8216;s attorneys undoubtedly told it yesterday, the leading decision addressing the legitimacy of linking to decryption tools is <a href="http://digital-law-online.info/cases/60PQ2D1953.htm"><em>Universal City Studios, Inc. </em></a><a href="http://digital-law-online.info/cases/60PQ2D1953.htm"><em>v. Corley</em></a>, 273 F.3d 429 (2nd Cir. 2001). That case deals with the prior iteration of this situation—the ordinary DVD—and the program for decrypting it, <a href="http://en.wikipedia.org/wiki/DeCSS">DeC</a><a href="http://en.wikipedia.org/wiki/DeCSS">SS</a>. In that case, the Second Circuit validated an anti-linking injunction (&#8220;under the circumstances amply shown by the record, the injunction’s linking prohibition validly regulates Appellants&#8217; opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs&#8221;). </p></blockquote> <p>The author portrays <a href="http://www.digg.com/">Digg</a>&#8216;s response as &#8220;a business decision: it can litigate tomorrow but it was going to lose customers today. I doubt that it made a decision about the need for civil disobedience.&#8221; He continues, &#8220;I wouldn&#8217;t think that not being able to play an encrypted high-definition DVD on your platform of choice would fall into that category [of laws necessitating civil disobedience].&#8221;</p> <p>A commentator named Ed Felten responds to this view:</p> <div class="comment-content"> <blockquote> <p>I&#8217;m disappointed at the narrow view of this issue you&#8217;ve taken. This is about more than &#8220;annoyance&#8221; at not being able to play HD-DVDs. In fact, I guarantee that many of the people that posted and &#8220;dugg&#8221; the offending stories have no intention of ever using the key to unlock an HD-DVD.</p> </p> <p>They participate to protest—as they have for years now—anti-circumvention provisions of the <a href="http://en.wikipedia.org/wiki/DMCA">DMCA</a>. This isn&#8217;t about HD-DVD. It&#8217;s about free speech and fair use.</p> </blockquote> </p></div> <p>I think this sums up a part of the divide between those who may disagree with the <a href="http://en.wikipedia.org/wiki/DMCA">DMCA</a>, but who do not see the extent of the problems envisioned by the <a href="http://www.eff.org/">EFF</a> and those many, many <a href="http://www.digg.com/">Digg</a> readers who protested what they viewed as censorship.</p> "Done with Criminal Law, on to Contracts and Immigration" https://inpropriapersona.com/news/2007/done-with-criminal-law-on-to-contracts-and-immigration/ Thu, 10 May 2007 19:29:00 +0000 8499d2ec30e5d49b92579d72a5bbb880 <p>As my <a href="http://lawschool.ekris.org/search/label/Criminal%20Law">Criminal Law</a> exam is now over, I am now focusing on updating my <a href="http://lawschool.ekris.org/search/label/Contracts">Contracts</a> materials on <a href="http://lawschool.ekris.org/">Notes from Law School</a>.</p> <p>I&#8217;ll also be creating new materials regarding my <a href="http://lawschool.ekris.org/search/label/Immigration">Immigration</a> class.</p> "“Unconstitutional laws still on books cause confusion in NJ”" https://inpropriapersona.com/articles/unconstitutional-laws-still-on-books-cause-confusion-in-nj/ Mon, 07 May 2007 03:53:00 +0000 3f3f8f45201d73b27436aafb74e3b64b <p>From <a href="http://www.newsday.com/news/local/wire/newjersey/ny-bc-nj--unconstitutionall0506may06,0,7631138.story?coll=ny-region-apnewjersey">AP/Newsday.com</a>:</p> <blockquote><p>Numerous state laws that have been struck down as unconstitutional are still on the books in New Jersey, a situation some experts say could be rectified if the laws were just removed. Others say it&#8217;s not that easy.</p> <p>Some of the laws are simply outdated, such as one that limits the amount of money county jails can spend to feed inmates to 50 cents per day.</p> <p>&#8230;</p> <p>Other laws have caused more controversy. Some high school students have been suspended for refusing to stand during the morning Pledge of Allegiance, according to Deborah Jacobs, executive director of the American Civil Liberties Union of New Jersey.</p> <p>The suspensions would appear to be supported by a state law that requires all students &#8220;show full respect to the flag&#8221; by standing during the pledge even if they don&#8217;t recite it. But the law was ruled unconstitutional by a federal appeals court in 1978. </p></blockquote> <p>This is quite typical in common-law countries, at least. Actually, it&#8217;s probably worse than it seems, since judge-made common-law also continues beyond its immediate use, and may be even less accessible to most people that legislative statutes. And, of course, multiply this by 50 states, a few territories, and the federal government, and you&#8217;ve got a really big mess!</p> "Laws for Bloggers" https://inpropriapersona.com/articles/laws-for-bloggers/ Sat, 05 May 2007 19:40:00 +0000 d6ebd5bb690133753f1a0035dd3103b0 <p>Laws apply to bloggers too. Resources that help make rights and responsibilities clear are always helpful, and this article is a useful compendium of twelve of the more important issues to bear in mind when blogging.</p> <blockquote><p>While the Internet still retains some of the &#8220;wild wild west&#8221; feel, increasingly Internet activity, and particular blogging, is being shaped and governed by state and federal laws. For US bloggers in particular, blogging has become a veritable land mine of potential legal issues, and the situation isn&#8217;t helped by the fact that the law in this area is constantly in flux. In this article we highlight twelve of the most important US laws when it comes to blogging and provide some simple and straightforward tips for safely navigating them.</p></blockquote> <ul> <li><a href="http://www.avivadirectory.com/blogger-law/">12 Important U.S. Laws Every Blogger Needs to Know</a></li> </ul> <p>And, as <a href="https://inpropriapersona.com/eff-legal-guide-for-bloggers/">previously mentioned</a> on 4/2, the <a href="http://www.eff.org/">EFF </a>has a very useful guide for bloggers as well:</p> <blockquote><p>But here&#8217;s the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn&#8217;t use the law to stifle legitimate free expression. That&#8217;s why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.</p></blockquote> <ul> <li><a href="http://www.eff.org/bloggers/lg/">EFF: Legal Guide for Bloggers</a></li> </ul> "AACS" https://inpropriapersona.com/articles/aacs/ Fri, 04 May 2007 20:16:00 +0000 c6b41f546d7cff05127a6fbf4550a359 <p>In an attempt to capture some of the current <a href="http://en.wikipedia.org/wiki/Advanced_Access_Content_System">AACS</a> (Advanced Access Content System, copy-restriction technology for new-format DVDs) controversy, here is some background information.</p> <p>The whole controversy started when someone managed to figure out what the 16-digit hexadecimal key is that currently encrypts new-format DVDs. Although knowledge of this rather simple number doesn&#8217;t in-itself decrypt DVDs (some software is needed too), it&#8217;s enough that the AACS organization began sending take-down notices to sites posting the key, and revoked it. (Meaning, I gather, that it will be useful for decrypting newly-published movies.)</p> <p>Free-speech and technology advocates revolted in a variety of ways, complaining essentially that a randomly-generated 32-digit hexadecimal number was not deserving of copyright protection. The more take-down notices were issued, the more sites posted the number.</p> <p><a href="http://www.eff.org/">EFF</a> provides good background in their write-up about various digital video copy-restriction technologies:<br /> <a href="http://web.archive.org/web/20080708232456/http://www.eff.org/IP/digitalvideo/">http://www.eff.org/IP/digitalvideo/</a></p> <p>BoingBoing comments:<br /> <a href="http://web.archive.org/web/20110716151210/http://www.boingboing.net/2007/05/04/aacs_vows_to_fight_p.html">AACS vows to fight people who publish the key</a></p> <p>Legally it appears AACS may actually be able to enforce the restriction on publication under current laws like the DMCA, although it&#8217;s unclear how practical that is, or if the courts would uphold the enforcement in this specific case&#8230; however, given the current Supreme Court makeup, I suspect the Constitutionality would be upheld.</p> "Done with Civil Procedure, on to Criminal Law" https://inpropriapersona.com/news/2007/done-with-civil-procedure-on-to-criminal-law/ Fri, 04 May 2007 19:37:00 +0000 da9ab30b17a2ecc581c4051ae44e322d <p>As my <a href="http://lawschool.ekris.org/search/label/Civil%20Procedure">Civil Procedure</a> exam is now over, I am now focusing on updating my <a href="http://lawschool.ekris.org/search/label/Criminal%20Law">Criminal Law</a> materials on <a href="http://lawschool.ekris.org/">Notes from Law School</a>.</p> "Notes from Law School" https://inpropriapersona.com/news/2007/notes-from-law-school/ Sat, 28 Apr 2007 02:18:00 +0000 93b9f52366e4d712b4ce697e6b777329 <p>I&#8217;ve begun to slowly add my notes, discussions, and reference materials from some of my law school classes, as an aid to my own study process and preparation for finals.</p> <p>Do not use for legal advice, consult an attorney for your specific situation, do your own studying, etc., etc.!</p> <p>See: <a href="http://lawschool.ekris.org">Notes from Law School</a></p> "Open Access, Or, Why Have an Institutional Repository?" https://inpropriapersona.com/articles/open-access-or-why-have-an-institutional-repository/ Wed, 25 Apr 2007 01:21:00 +0000 cce71eeddebd6e85430f275dfd251f69 <blockquote><p>For the past decade or so, a number of scientists have argued that the World Wide Web offers a way to unlock the gates that was not possible when scientific results were conveyed solely by print-on-paper. Advocates of &#8220;open access&#8221; argue that research results must be made available such that all scientists can see them and use them, for free, via the Web.</p></blockquote> <p>See: <a href="http://www.americanscientist.org/template/AssetDetail/assetid/55131">Open Access and the Progress of Science</a></p> "Institutional Repositories: Who is Using What?" https://inpropriapersona.com/articles/institutional-repositories-who-is-using-what/ Wed, 25 Apr 2007 01:11:00 +0000 513fb02d9708df4fda95a4a762e3bc86 <p>There are two main, freely available software packages that seem to be used to maintain institutional repositories:</p> <ul> <li><a href="http://www.dspace.org/">DSpace</a>: <a href="http://wiki.dspace.org/index.php/DspaceInstances">DSpace Instances</a> <li><a href="http://www.eprints.org/">EPrints</a>: <a href="http://www.eprints.org/software/archives/">Sites Powered by EPrints</a> </ul> "Judge Upholds Award of Attorneys’ Fees Against RIAA" https://inpropriapersona.com/articles/judge-upholds-award-of-attorneys-fees-against-riaa/ Wed, 25 Apr 2007 00:16:00 +0000 712f3904c72c7527b55a510695afe389 <blockquote><p>So far, the RIAA has sued over 18,000 individuals for allegedly sharing music over the Internet. But the industry uses slapdash investigative methods to find its targets, and so innocent people as well as guilty ones can find themselves entangled in an expensive and draining process. One recent victim was a woman who didn&#8217;t even own a computer. Another lawsuit target was deceased. If Ms. Foster is awarded attorney&#8217;s fees, it will encourage future innocent victims to stand up for themselves in court. &#8211; <a href="http://www.eff.org/legal/cases/Capitol_v_Foster/">EFF</a></p></blockquote> <p>The judge did indeed award attorneys&#8217; fees, and refused to reconsider the award:</p> <blockquote><p>A federal judge has denied the RIAA&#8217;s motion for reconsideration of his attorneys&#8217; fees award in <em>Capitol v. Foster</em>. Calling the RIAA&#8217;s motion for reconsideration one of &#8220;very limited appropriateness,&#8221; Judge Lee R. West found fault with just about every one of the RIAA&#8217;s arguments. &#8211; <a href="http://arstechnica.com/news.ars/post/20070424-judge-denies-riaa-request-to-reconsider-attorneys-fees-award.html">ars technica</a> </p></blockquote> <p><a href="http://www.eff.org/deeplinks/archives/005114.php">EFF</a> gives some background:</p> <blockquote><p>Last year, Judge Lee R. West dismissed the case against her with prejudice after it became clear that Ms. Foster was simply the Internet access account holder in her home and had no knowledge or experience with file sharing software. EFF, Public Citizen, the ACLU, and the American Association of Law Libraries filed an <a href="http://web.archive.org/web/20080724063514/http://www.eff.org/legal/cases/Capitol_v_Foster/amicus_in_support_of_fees.pdf">amicus brief</a> in the case, supporting Ms. Foster&#8217;s motion for fees. </p></blockquote> <p>Of the <a href="http://web.archive.org/web/20110207003529/http://www.ilrweb.com:80/viewILRPDF.asp?filename=capitol_foster_dismissal">original order</a> awarding attorneys&#8217; fees, <a href="http://www.groklaw.net/articlebasic.php?story=20070208021454284">Groklaw</a> writes:</p> <blockquote><p>The court&#8217;s analysis goes like this: ordinarily a court has discretion to award fees or not, and some of the factors it will consider will be such things as frivolousness. Other factors, Judge West states, are &#8220;motivation, objective unreasonableness of the non-prevailing party&#8217;s case, and need in particular circumstances to advance considerations of compensation and deterrence.&#8221; In the US, fees are not normally granted if a case is dismissed with prejudice. But in exceptional circumstances, it can happen, such as &#8220;where a plaintiff makes a practice of repeatedly bringing claims and then dismissing with prejudice &#8216;after inflicting substantial litigation costs on the opposing party and the judicial system.'&#8221;</p></blockquote> <p>And more from <a href="http://www.groklaw.net/articlebasic.php?story=20070208021454284">Groklaw</a>:</p> <blockquote><p>[T]he music industry, which has been suing the poor and powerless—some believe so as to build a body of one-sided case law around US Copyright Law—has been told where the line in the sand is. The plaintiffs who massed against this defendant—Capitol Records, UMG Recordings, Maverick Recording Company, BMG Music, Arista Records, Sony BMG Music Entertainment, and Warner Bros. Records—have been told they will have to pay a reasonable amount, yet to be determined, of this vindicated defendant&#8217;s legal fees, because she has been ruled the prevailing party, against all odds.</p></blockquote> <p>The <a href="http://www.riaa.com/">RIAA</a> is notorious for these suits, as they attempt to use the judicial system for their advantage. However, provided one has an attorney willing and able to resist, the system does strive ultimately for fairness. That, of course, is one reason I am in law school.</p> "18 U.S.C. SS 2709. Counterintelligence access to telephone toll and transactional records (Part VII)" https://inpropriapersona.com/articles/18-u-s-c-2709-counterintelligence-access-to-telephone-toll-and-transactional-records-part-vii/ Mon, 23 Apr 2007 06:40:00 +0000 a8b17e424ab8ab60338de39a7333aa31 <p>Interestingly, &#8220;remote computing services&#8221; are not mentioned in this section. Instead, only &#8220;wire or electronic communication service provider[s]&#8221; must provide &#8220;subscriber information and toll billing records information, or electronic communication transaction records&#8221; upon proper certification by the Federal Bureau of Investigation.</p> "18 U.S.C. SS 2703. Required disclosure of customer communications or records (Part VI)" https://inpropriapersona.com/articles/18-u-s-c-2703-required-disclosure-of-customer-communications-or-records-part-vi/ Sun, 22 Apr 2007 22:38:00 +0000 8f53156eab62c478bf4d2356b8f90997 <p>As in 18 U.S.C. § 2702, both electronic communication services and remote computing services are explicitly addressed in parts (a) and (b), respectively. Part (a) provides the greatest level of protection against governmental access, as it requires &#8220;a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.&#8221; 18 U.S.C. § 2703(a). However, the statute provides that access to contents of a communication stored at a provider for more than 180 days falls under the more lenient standards that apply equally to access to contents of communications housed at a remote computing service. <span style="font-style:italic;">Id.</span></p> <p>Under part (b), data held at remote computing services—and, as noted, communications stored for more than 180 days with an electronic communication service—allow more lenient government access. With a full warrant, the government can access the contents of a communication without notifying the subscriber or customer. 18 U.S.C. § 2703(b)(1)(A). With prior notice, an administrative subpoena or a court order is sufficient (see 18 U.S.C. § 2703(d) for the requirements for the court order) for government access to the contents of the communications.</p> <p><span style="font-style:italic;">Freedman v. Am. Online, Inc.</span>, 303 F. Supp. 2d 121 (Conn. 2004), deals with violations of Section 2703 by a town police department, who used an invalid warrant to solicit subscriber information. The court stated that &#8220;in soliciting and obtaining . . . personal information about the Plaintiff from AOL&#8221; the government failed to comply with the ECPA&#8217;s requirements that it either (1) had a valid warrant or (2) gave the plaintiff prior notice and sought a subpoena or court order. In addition, the court found it &#8220;unlikely&#8221; that the government would prevail in its argument that 18 U.S.C. § 2703(c)(1)(B) &#8220;puts the obligation on the online service provider to withhold information from the government, and not vice versa.&#8221; In soliciting the information from AOL, &#8220;the government knew, or should have known, that by turning over the information without a warrant, AOL was breaking the law.&#8221;</p> "18 U.S.C. SS 2702. Voluntary disclosure of customer communications or records (Part V)" https://inpropriapersona.com/articles/18-u-s-c-2702-voluntary-disclosure-of-customer-communications-or-records-part-v/ Sun, 22 Apr 2007 22:35:00 +0000 e750c26e33fa3d275eace52930fdf2e5 <p>In contrast to Section 2701, Section 2702 does clearly include prohibitions on disclosure of the &#8220;contents&#8221; of a &#8220;communication&#8221; held by both electronic communications services and remote computing services. 18 U.S.C. § 2702(a)(1) and (a)(2). Exceptions on voluntary disclosure &#8212; such as in cases of emergency, statutory authorization, and some other situations &#8212; apply equally to electronic communication services and remote computing services. 18 U.S.C. § 2707 contains the provisions for civil actions against those who violate 18 U.S.C. § 2702.</p> "18 U.S.C. SS 2701. Unlawful access to stored communications (Part IV)" https://inpropriapersona.com/articles/18-u-s-c-2701-unlawful-access-to-stored-communications-part-iv/ Sun, 22 Apr 2007 22:33:00 +0000 45d142a5653d89123bc66b2baaef86d2 <p>A plain-meaning interpretation of 18 U.S.C. § 2701 (&#8220;Unlawful access to stored communications&#8221;) suggests that it applies only to &#8220;electronic communication services&#8221; and not to &#8220;remote computing services,&#8221; since the offense is defined with the following elements:</p> <ol> <li>intentional,</li> <li>access,</li> <li>without authorization,</li> <li>to a facility through which an electronic communication service is provided.</li> </ol> <p>Alternate grounds for the offense are to</p> <ol> <li>intentionally,</li> <li>exceed authorization,</li> <li>to access,</li> <li>a facility through which an electronic communication service is provided,</li> <li>thereby obtaining, altering, or preventing authorized access to a wire or electronic communication,</li> <li>while it is in electronic storage.</li> </ol> <p>Since, as noted above, &#8220;electronic storage&#8221; applies only to &#8220;electronic communication services,&#8221; these alternate grounds also exclude &#8220;remote computing services&#8221; as well. <span style="font-style: italic;">See</span> 18 U.S.C. § 2510(17).</p> <p>As there appears to be no equivalent statute for remote computing services, these criminal sanctions appear not to be applicable to those who access data stored at remote computing services without authorization.</p> "Electronic Communication Services (Part III)" https://inpropriapersona.com/articles/electronic-communication-services-part-iii/ Sun, 22 Apr 2007 22:28:00 +0000 fa3ba1e051efeee74f24d065a24ae5db <p>Electronic bulletin boards also fall within the realm of &#8220;electronic communication services.&#8221; <span style="font-style:italic;">See Kaufman v. Nest Seekers, LLC</span>, 2006 U.S. Dist. LEXIS 71104, 16 (S.D.N.Y. 2006) (&#8220;An electronic bulletin board fits within the definition of an electronic communication service provider&#8221;).</p> <p>18 U.S.C. § 2510(14) defines &#8220;electronic communications system&#8221; to mean &#8220;any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications.&#8221;</p> <p>One trial court noted that the term &#8220;electronic communication service&#8221; applied to ISPs and telecommunication companies which provide the means upon which Internet communications travel. <span style="font-style:italic;">In re Doubleclick Privacy Litig.</span>, 154 F. Supp. 2d 497, 508, 511 n. 20 (S.D.N.Y. 2001).</p> "Remote Computing Services (Part II)" https://inpropriapersona.com/articles/remote-computing-services-part-ii/ Sun, 22 Apr 2007 22:26:00 +0000 2b709628455448656c7162b810eb49de <blockquote><p>[T]he term &#8220;remote computing service&#8221; is defined in the ECPA as &#8220;the provision to the public of computer storage or processing services by means of an electronic communication system.&#8221; 18 U.S.C. § 2711(2). The statute&#8217;s legislative history explains that such services exist to provide sophisticated and convenient data processing services to subscribers and customers, such as hospitals and banks, from remote facilities. See S. Rep. No. 99-541 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3564. By supplying the necessary equipment, remote computing services alleviate the need for users of computer technology to process data in-house. Id. Customers or subscribers may enter into time-sharing arrangements with the remote computing service, or data processing may be accomplished by the service provider on the basis of information supplied by the subscriber or customer. </p></blockquote> <p><span style="font-style:italic;">In re JetBlue Airways Corp. Privacy Litig.</span>, 379 F. Supp. 2d 299, 310, (E.D.N.Y.2005).</p> <p>An electronic bulletin board is an example of a &#8220;remote computing service&#8221; under 18 U.S.C. § 2711(2). <span style="font-style:italic;">Steve Jackson Games v. United States Secret Serv.</span>, 816 F. Supp. 432, 443 (W. Dist. Tex. 1993).</p> <p>To be protected as a &#8220;remote computing service,&#8221; the provider must be open to the &#8220;public,&#8221; and not, for example, restricted to employees of a particular corporation. See 18 U.S.C. § 2711(2). <span style="font-style:italic;">See also</span> <span style="font-style:italic;">Andersen Consulting LLP v. UOP</span>, 991 F. Supp. 1041, 1043 (N.D. Ill. 1998) (interpreting &#8220;providing . . . to the public&#8221; under 18 U.S.C. § 2702 to exclude a corporate e-mail system that was made available to employees and a contractor but not to &#8220;any member of the community at large&#8221;).</p> "Electronic Communication Services vs. Remote Computing Services (Part I)" https://inpropriapersona.com/articles/electronic-communication-services-vs-remote-computing-services-part-i/ Sun, 22 Apr 2007 22:22:00 +0000 40d6cdac25885a3d5a17c63058cefc86 <p>In <span style="font-style:italic;">Konop v. Hawaiian Airlines, Inc.</span>, 302 F.3d 868, 875 (9th Cir. 2002), the Ninth Circuit wrote, &#8220;The legislative history of the ECPA suggests that Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards.&#8221;</p> <p>In general, the status of &#8220;electronic communication services&#8221;—such as providers of electronic mail where the data stays on the server for only a limited amount of time—is more defined that that of &#8220;remote computing services.&#8221; Although the advent of Google and other Web-based application providers has made remote computing services into key players today, they occupied a relatively minor role since the passage of ECPA. In addition, it appears that Congress did not envision customers leaving sensitive data in storage—either with electronic communication services or with remote computing services—for any length of time, and therefore did not think to extend much legal protection to such stored communications.</p> <p>One key difference between &#8220;remote computing services&#8221; and &#8220;electronic communication services&#8221; is the difference in protection for data stored with the provider. Only data either temporarily passing through an electronic communication service or held as a backup by an electronic communication service can be in &#8220;electronic storage&#8221; according to 18 U.S.C. § 2510(17): &#8220;(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.&#8221; <span style="font-style:italic;">See also Quon v Arch Wireless Operating Co.</span>, 309 F. Supp. 2d 1204 (C.D. Cal. 2004). Other key differences emerge when looking at 18 U.S.C. §§ 2701, 2702, and 2703 (see next posts).</p> "Legal Issues with Institutional Repositories" https://inpropriapersona.com/articles/legal-issues-with-institutional-repositories/ Thu, 19 Apr 2007 20:09:00 +0000 9eda9f5e51c7bc70289b37f60c6f63c9 <p>I am just beginning to delve into legal issues related to <a href="http://en.wikipedia.org/wiki/Institutional_repository">institutional repositories</a>.</p> <p>See, for example: <a href="http://www.google.com/url?sa=t&amp;ct=res&amp;cd=1&amp;url=http%3A%2F%2Fwww.ukoln.ac.uk%2Frepositories%2Fdigirep%2Fimages%2F0%2F07%2FFF-Heriot-Watt.ppt&amp;ei=SMwnRvyCKJGMgASckIC-Dw&amp;usg=AFrqEzfzKIk6QCEdOCYVD2dDHWSM41ZouQ&amp;sig2=0I-TKPzOoVyFPLnHzHyH4A"> Legal Issues for Institutional Repositories: An Overview</a> (PowerPoint via Google).</p> <p>Obviously, I have more research and work to do in this area before being able to put something intelligent together.</p> "UC Hastings Law School Evacuated" https://inpropriapersona.com/news/2007/uc-hastings-law-school-evacuated/ Wed, 18 Apr 2007 23:40:00 +0000 7f8ee95d288dfd8048e49108fb3f6c99 <p>The events in Virgina seep across the continent:</p> <blockquote><p> From: Dean Nell Newton<br /> Re: Security Threat</p> <p>Dear students, faculty and staff,<br /> Today we have received information from an internet discussion board regarding a copycat threat of violence to the Hastings community. We have met with representatives of the FBI and the San Francisco Police and in light of the advice they have given us, we have decided to close the law school immediately. Offices will reopen and classes resume tomorrow (Thursday) as usual. </p></blockquote> <p>For the complete letter, see: <a href="http://web.archive.org/web/20070814012938/http://blog.ashleystravel.com:80/2007/04/uc-hastings-law-school-building-evacuation/" rel="bookmark" title="Permanent Link: UC Hastings Law School - Building Evacuation">UC Hastings Law School &#8211; Building Evacuation.</a></p> "The Power of Gifts to Transform and Connect" https://inpropriapersona.com/articles/the-power-of-gifts-to-transform-and-connect/ Wed, 04 Apr 2007 21:42:00 +0000 f377053d24e9316015356ec7d41ba28d <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 200px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:Georg-Simmel-1914.jpg"><img class="zemanta-img-configured" title="Georg Simmel, German philosopher and sociologist" src="http://upload.wikimedia.org/wikipedia/commons/thumb/7/70/Georg-Simmel-1914.jpg/300px-Georg-Simmel-1914.jpg" alt="Georg Simmel, German philosopher and sociologist" width="200" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <p>The notion of a &#8220;gift economy&#8221; is an interesting one that brings the idea of non-economic connections into focus. Given that most of us spend most of our time in commercial, consumer-focused world, thinking about alternatives provides an interesting perspective.</p> <p>See also: <a href="http://en.wikipedia.org/wiki/Gift_economy">Gift economy &#8211; Wikipedia</a></p> <p>My old thesis, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556803">But that Speaking Makes it So</a>, puts it like this:</p> <blockquote><p>There are a number of interlinking elements which invest gift exchange with the power to transform and connect people. Two of these are faithfulness and gratitude. &#8220;Faithfulness,&#8221; writes Georg Simmel, &#8220;might be called the inertia of the soul. It keeps the soul on the path on which it started, even if the original occasion that led it onto it no longer exists.&#8221; Faithfulness allows for already established relationships to continue, even after the initial impetus to their formation has passed. Thus the existence of a drive towards faithfulness in individuals means that people will tend to continue what has already begun, and that gift relationships will tend to endure once started. For this reason, accepting a gift, and thus establishing a relationship, is a decision which exceeds the temporal limits of the immediate gift exchange. It means at least accepting the possibility of a long-term relationship.</p></blockquote> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=22decae9-77a8-406d-ae5f-f6376aa355c1" alt="" /></div> "EFF: Legal Guide for Bloggers" https://inpropriapersona.com/articles/eff-legal-guide-for-bloggers/ Tue, 03 Apr 2007 11:08:00 +0000 d731bc56b6fb0592c3dc4e0deb8de760 <p><a href="http://www.eff.org/bloggers/"><img class="alignleft" src="http://w2.eff.org/bloggers/badges/bloggers-legal-148x120px.png" border="0" alt="" width="148" height="120" /></a></p> <blockquote><p>But here&#8217;s the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn&#8217;t use the law to stifle legitimate free expression. That&#8217;s why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.</p></blockquote> <p>An excellent resource from the Electronic Frontier Foundation to advise bloggers on legal issues.</p> <p>See: <a href="http://www.eff.org/bloggers/lg/">Legal Guide for Bloggers</a>.</p> "Legal Impossibility in Sherlock Holmes" https://inpropriapersona.com/articles/legal-impossibility-in-sherlock-holmes/ Mon, 02 Apr 2007 18:22:00 +0000 2d95f2453989528a43003ea4bce93a9c <div class="zemanta-img" style="margin: 1em; display: block;"> <figure style="max-width: 300px" class="wp-caption alignright"><a href="http://commons.wikipedia.org/wiki/File:JohnHWatson.jpg"><img class="zemanta-img-configured" title="Sherlock Holmes in &quot;The Adventure of the ..." src="http://upload.wikimedia.org/wikipedia/commons/4/45/JohnHWatson.jpg" alt="Sherlock Holmes in &quot;The Adventure of the ..." width="300" height="365" /></a><figcaption class="wp-caption-text">Image via Wikipedia</figcaption></figure> </div> <blockquote><p>It was in the spring of the year 1894 that all London was interested, and the fashionable world dismayed, by the murder of the Honourable Ronald Adair under most unusual and inexplicable circumstances&#8230;.</p> <p>For an instant he was rigid and motionless. Then his finger tightened on the trigger. There was a strange, loud whiz and a long, silvery tinkle of broken glass. At that instant Holmes sprang like a tiger on to the marksman&#8217;s back and hurled him flat upon his face.</p> <p>&#8230;</p> <p>It was a wax-coloured model of my friend, so admirably done that it was a perfect facsimile. It stood on a small pedestal table with an old dressing-gown of Holmes&#8217;s so draped round it that the illusion from the street was absolutely perfect.</p> <p>&#8230;</p> <p>&#8220;You can trust us to look after that, Mr. Holmes,&#8221; said Lestrade, as the whole party moved towards the door. &#8220;Anything further to say?&#8221;</p> <p>&#8220;Only to ask what charge you intend to prefer?&#8221;</p> <p>&#8220;What charge, sir? Why, of course, the attempted murder of Mr. Sherlock Holmes.&#8221;</p> <p>&#8220;Not so, Lestrade.&#8221;</p></blockquote> <p>Instead, Sherlock Holmes proposes Lestrade charge Colonel Moran with the murder of Ronald Adair. After all, according to old common law, the Colonel had not committed attempted murder of Holmes, since he had only shot a wax bust! This is the doctrine of &#8220;<a href="http://en.wikipedia.org/wiki/Legal_impossibility">legal impossibility</a>.&#8221;</p> <p>See: <a href="http://www.gutenberg.us/articles/eng/The_Adventure_of_the_Empty_House">The Return of Sherlock Holmes &#8211; &#8220;The Adventure of the Empty House&#8221;</a>.</p> "Katz and Berger and a “Reasonable Expectation of Privacy”" https://inpropriapersona.com/articles/katz-and-berger-and-a-reasonable-expectaction-of-privacy/ Wed, 28 Mar 2007 20:53:00 +0000 e768add0160a3b5607a8aa64f50cc5a6 <blockquote><p>Question: Do <a href="http://supreme.justia.com/constitution/amendment-04/28-berger-and-katz-cases.html"><span style="font-style: italic;">Katz</span> and <span style="font-style: italic;">Berger</span></a> support the concept that a &#8220;reasonable expectation of privacy&#8221; determines when a &#8220;search&#8221; or &#8220;seizure&#8221; has occurred in violation of the <a href="http://supreme.justia.com/constitution/amendment-04/">Fourth Amendment</a>?</p></blockquote> <p>In <span style="font-style: italic;">Katz</span>, the majority opinion speaks of <span style="font-style: italic;">justifiable reliance</span> determining what is a &#8220;search and seizure&#8221;: &#8220;[t]he Government&#8217;s activities in electronically listening to and recording the petitioner&#8217;s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a &#8216;search and seizure&#8217; within the meaning of the Fourth Amendment.&#8221; <span style="font-style: italic;">Katz</span> at 353.</p> <p>Justice Harlan&#8217;s concurrence in <span style="font-style: italic;">Katz</span> does use the phrase &#8220;reasonable expectation of privacy&#8221;: &#8220;I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, <span style="font-style: italic;">Weeks v. United States</span>, 232 U.S. 383 , and unlike a field, <span style="font-style: italic;">Hester v. United States</span>, 265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; [389 U.S. 347, 361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.&#8221; <span style="font-style: italic;">Katz</span> at 360-361.</p> <p><span style="font-style: italic;">Berger</span>, on the other hand, speaks broadly of &#8220;constitutionally protected areas&#8221; and specifically of &#8220;eavesdropping on conversations.&#8221; I believe the test in <span style="font-style: italic;">Berger</span> is more applicable to evaluate whether a statute satisfies Fourth Amendment requirements. I don&#8217;t think it is about defining what a &#8220;search&#8221; or a &#8220;seizure&#8221; as much as it is about showing what the requirements are for a <em>proper</em> search &amp; seizure that meets Fourth Amendment standards.</p> <p>I do think the logic in <span style="font-style: italic;">Berger</span> is consistent with the concept of a &#8220;reasonable expectation of privacy,&#8221; but the Court does not make that connection clear. Its reasoning seems to focus more on the concept that eavesdropping devices simply invade &#8220;the innermost secrets of one&#8217;s home or office.&#8221; <span style="font-style: italic;">Berger</span> at 63.</p> <p>In other parts of the opinion, the Court refers to &#8220;constitutionally protected areas&#8221; without clearly defining what those areas are: &#8220;The purpose of the probable-cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed is thereby wholly aborted.&#8221; <span style="font-style: italic;">Berger</span> at 59.</p> <p>When the <span style="font-style: italic;">Berger</span> court gets more narrow, it is to focus specifically on eavesdropping and conversations specifically: &#8220;authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause.&#8221; Berger at 59. (This part is the best match to the statement you sent.) Throughout the opinion, the Court assumes that eavesdropping on conversations invades a person&#8217;s privacy, but does not clearly indicate <span style="font-style: italic;">why</span> that is a problem (though it seems to rely on some earlier opinions that might do so).</p> <p>In short, the main point of <span style="font-style: italic;">Berger</span> seems to be focused on demonstrating that the New York statute in question violates the Fourth Amendment. The Court shows how it does, and provides some guidance for how to write a statute that doesn&#8217;t violate the Fourth Amendment, but never quite says <span style="font-style: italic;">why</span> conversations should be protected (other than as an invasion of privacy, complete with some railing about the potential for abuse of widespread eavesdropping by the government).</p> <p>See also: <a href="http://supreme.justia.com/constitution/amendment-04/28-berger-and-katz-cases.html">The Berger and Katz Cases</a> and the <a href="http://web.archive.org/web/20070202210832/http://www.eff.org:80/legal/cases/warshak_v_usa/warshak_amicus.pdf">EFF, ACLU and CDT Amicus Brief to Sixth Circuit</a> in <a href="http://web.archive.org/web/20080829140321/http://eff.org/legal/cases/warshak_v_usa/">Warshak v. USA</a>.</p> "Gaps Between Teaching and Skills in Law" https://inpropriapersona.com/articles/gaps-between-teaching-and-skills-in-law/ Tue, 27 Mar 2007 15:49:00 +0000 71b5cf33d2665dbc49982fd6ac685792 <blockquote><p>A large majority of lawyers perceive critical gaps between what they are taught in law schools and the skills they need in the workplace, and appropriate technologies are not being used to help close this gap.</p></blockquote> <p>— <a href="http://cyber.law.harvard.edu/home/bio_genekoo">Gene Koo</a>, <a href="http://blogs.law.harvard.edu/vvvv/2007/03/27/legal-education-technology/">New Skills, New Learning</a>: legal education and the promise of technology</p> <p>I can attest to this. When one&#8217;s Legal Writing &amp; Research class forbids one to use online resources during the first semester, and only grudgingly grants access during the second semester, how can I not? The only training or instruction with online resources we&#8217;ve received has been a brief Lexis training seminar from our company representative.</p> "Reasonable Expectations of Privacy in Civilian and Military Workplaces" https://inpropriapersona.com/articles/reasonable-expectations-of-privacy-in-civilian-and-military-workplaces/ Mon, 26 Mar 2007 17:37:00 +0000 3841595d630b435895568367cc9c5afc <p><span style="font-style:italic;">United States v. Long</span>, 64 M.J. 57 (2006)</p> <p>Appellee was charged with unlawful drug use violating Unif. Code Mil. Justice art. 112a, 10 U.S.C.S. § 912a. Defense motions to suppress incriminating e-mails seized from appellee&#8217;s account on a government computer on a claim that the search was unauthorized were denied, and appellee was convicted.</p> <p>The court held that appellee had a subjective expectation of privacy that was objectively reasonable and that the error in admitting the challenged e-mails was not harmless beyond a reasonable doubt. It thereupon entered an order setting aside the findings and sentence, and it authorized a rehearing.</p> <p>The court distinguishes workplace searches by employers from searches of and by military personnel due to the greater threat of criminal sanction for workplace misconduct, and thus a greater need for 4th Amendment protections. The dissent, on the other hand, equates workplaces with the military thinks she had no expectation of privacy. The dissent cites <span style="font-style:italic;">United States v. Ziegler</span>, 456 F.3d 1138, 1146 (9th Cir. 2006) saying, &#8220;&#8216;Employer monitoring is largely an assumed practice, and thus we think a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.&#8217; Every time Appellee turned on her computer, she was aware of the computer-use policy of her service and could not have a reasonable expectation of privacy.&#8221;</p> <p>The court also relies on 1996 military ruling that an Air Force officer using AOL was protected by AOL&#8217;s privacy policy (i.e., he had a reasonable expectation of privacy in his stored email due to AOL policy), and that a search without probable cause was also not valid. <span style="font-style:italic;">United States v. Maxwell</span>, 45 M.J. 406 (1996). Note that at the time AOL only stored email for a maximum of 5 weeks before purging, so this doesn&#8217;t get into the &gt;180 issue (which allows easier access to electronic records stored longer than 180 days).</p> "Deference to Congress’ Findings" https://inpropriapersona.com/articles/deference-to-congress-findings/ Sun, 25 Mar 2007 01:58:00 +0000 8db86f958c9d73273e9e54c6c5051ac8 <p>To defer to Congress without sufficient review would ignore the Supreme Court&#8217;s constitutional role: &#8220;It is emphatically the province and duty of the judicial department to say what the law is.&#8221; <span style="font-style:italic;">Marbury v. Madison</span>, 5 U.S. 137, 177 (1803). Allowing Congress to force the Court through one-sided &#8220;findings of fact&#8221; to declare a statute constitutional would permit Congress to circumvent the judiciary&#8217;s constitutional power. To do so would significantly interfere with the power granted to the Court under the Constitution and the Bill of Rights to protect the rights of the minority from the desires of the majority. See, e.g., U.S. Const. art. III, § 1 (&#8220;The judicial Power of the United States, shall be vested in one supreme Court&#8221;); U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land”); Saikrishna Prakash, Are the Judicial Safeguards of Federalism the Ultimate Form of Conservative Judicial Activism?, 73 U. Colo. L. Rev. 1363, 1367 (2002) (noting that &#8220;the Framers understandably read various constitutional provisions . . . as authorizing and permitting judicial review to constrain congressional overreaching&#8221;); Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1136 (1991) (noting that the Bill of Rights &#8220;protect[s] vulnerable minorities from dominant social majorities&#8221;); Susan M. Raeker-Jordan, Parsing Personal Predilictions, 58 Me. L. Rev. 99, 127 (2006) (emphasizing that &#8220;the Constitution&#8217;s Bill of Rights . . . is often seen as safeguarding the rights of the individual against the tyranny of the majority&#8221;).</p> <p>Simply because Congress finds that a particular activity meets a test for constitutionality does not necessarily make that conclusion correct. <span style="font-style:italic;">United States v. Lopez</span>, 514 U.S. 549, 557, n. 2 (1995) (holding that gun possession in local school zones did not substantially affect interstate commerce and concluding that Congress lacked authority to enact a law prohibiting such activity). A decision about constitutionality &#8220;is ultimately a judicial rather than a legislative question.&#8221; <span style="font-style:italic;">Id.</span> In short, despite congressional findings of fact, the Supreme Court, not Congress, decides constitutional matters. <span style="font-style:italic;">United States v. Morrison</span>, 529 U.S. 598, 614 (2000) (exercising judicial authority to strike down congressional legislation in the form of the Violence Against Women Act because it was not related to commerce clause authority, despite congressional findings that it was).</p> "The Particularity of Paratext" https://inpropriapersona.com/articles/the-particularity-of-paratext/ Sun, 25 Mar 2007 01:11:00 +0000 30746e80b4ecdcdea266f8bad2123ce9 <p>It is important to realize that paratext and other codes and signs in the work do not merely exist (though they may occupy many levels of intentionality, from completely unintentional on the part of the author but intended by the editor to intentional on the part of the author to unintended by everyone involved): they are created by someone, in particular circumstances, for particular reasons. Marginalia written by readers may in turn become paratext for later readers (or for the original reader); introductions may be written by editors or authors; fonts may arise from compositors or may be requested by authors. But their impact is undeniable: it is not at all the same to read Borges&#8217; &#8220;<span style="font-style:italic;">Ruinas circulares</span>&#8221; as a story in a (rather pretty) 1956 edition of <span style="font-style:italic;">Ficciones</span>, as to read it as &#8220;Circular Ruins&#8221; in the English-language &#8220;Everyman&#8217;s Library&#8221; edition of Alfred A. Knopf, in 1993, as to read it situated amongst other stories in a book made for &#8220;intermediate or advanced students.&#8221; Each version includes elements not present in the &#8220;original&#8221; book (although the &#8220;content&#8221; remains always the same)&mdash;if we can even identify an original.</p> <p>See: <a href="http://papers.ssrn.com/abstract=1141062">A Pretext for Writing</a>.</p> "New Jersey and the Right to Privacy" https://inpropriapersona.com/articles/new-jersey-and-the-right-to-privacy/ Sun, 25 Mar 2007 00:32:00 +0000 e61f63345f9befccb6ee13330fd927b6 <blockquote><p>[T]he right to privacy of New Jersey citizens under our State Constitution has been expanded to areas not afforded such protection under the Fourth Amendment. . . . [O]nly New Jersey appears to have recognized a right to what has been called &#8220;informational privacy.&#8221; In general, &#8220;informational privacy encompasses any information that is identifiable to an individual. This includes both assigned information, such as a name, address, or social security number, and generated information, such as financial or credit card records, medical records, and phone logs. . . . [P]ersonal information will be defined as any information, no matter how trivial, that can be traced or linked to an identifiable individual.</p></blockquote> <p>The New Jersey Supreme Court rejected reasoning of <span style="font-style: italic;">Smith v. Maryland</span> in <span style="font-style: italic;">State v. Hunt</span>, 91 N.J. 338 (1982). Also rejected reasoning United States v. Miller and <span style="font-style: italic;">United States v. Payner</span> in <span style="font-style: italic;">State v. McAllister</span>, 184 N.J. 17 (2005) to find person has a reasonable expectation of privacy for bank records. (Note that a valid grand jury subpoena <span style="font-style: italic;">duces tecum</span> is sufficient, and the court notes that even an &#8220;administrative subpoena&#8221; might be OK.)</p> <p>The appeals court concludes that a the woman in this case &#8220;had a reasonable expectation of privacy in her ISP account&#8221; with AOL, partly due to her use of a screen name instead of her real name (and in slightly technically suspect reasoning&#8211;the law is OK, the tech is a little shaky&#8211;the use of an IP address, which the court seems to think she intentionally chose for the sake of anonymity). The court analogizes the personal computer use to telephone use.</p> <p>Ultimately, the court says &#8220;proper judicial process&#8221; is required, although I&#8217;m a little unclear if something less than probable cause might be OK in some circumstances for some kinds of info&#8211;but certainly the court encourages a probable cause standard, and finds the subpoena in this case (issued by a court administrator in the Municipal Court) invalid and insufficient.</p> <p>From <span style="font-style: italic;">State of New Jersey v. Reid</span>, decided January 22, 2007 by the appellate court in New Jersey.</p> "Search & Seizure of Stored Email" https://inpropriapersona.com/articles/search-seizure-of-stored-email/ Fri, 23 Mar 2007 03:42:00 +0000 3e7c39441069777689a75cde6bb58c2e <p>Can the government conduct secret, warrantless searches and seizures of email stored with a third party?</p> <p>In <span style="font-style:italic;">Warshak v. United States</span>, the 6th U.S. Circuit Court of Appeals is currently considering the issue of government access to stored electronic mail without a probable-cause warrant. The appeal originated out of a district court finding that stored electronic mail is subject the 4th Amendment protection, despite the involvement of a third-party ISP: the government&#8217;s argument in favor of a &#8220;standard of proof of less than probable cause . . . cannot stand.&#8221; Although the district court found that, in general, a probable-cause warrant ought to be required for access to electronic mail, it also found that the &#8220;terms of the subscriber agreement between the ISP and Warshak&#8221; were very important. In the district court&#8217;s view, the basis for requiring a warrant in a specific instance hinged on whether or not the account holder had a &#8220;reasonable expectation of privacy&#8221; with regards to a particular account at a particular ISP.</p> <p>See also: <a href="http://web.archive.org/web/20080829140321/http://eff.org/legal/cases/warshak_v_usa/">Warshak v. United States at EFF&#8217;s site</a>.</p> "Wifi-based Location Determination" https://inpropriapersona.com/articles/wifi-based-location-determination/ Thu, 22 Mar 2007 04:12:00 +0000 9fd1114a0f5f870158114dd7da050725 <p>A new method of computer-based tracking has recently emerged: wifi. A company has been sending trucks all over the U.S. and Canada mapping access points, addresses and names, and now claims that they have technology to say where you are in relation to other people based on what access points your computer can see nearby. (I&#8217;m guessing this is not exactly precision&#8211;it&#8217;s probably accurate to a block or two.) They&#8217;re partnering with AOL to deliver location-based products, initially to instant messaging.</p> <p>Some articles:</p> <ul> <li><a href="http://web.archive.org/web/20070517211824/http://biz.yahoo.com:80/ap/070318/aol_instant_messenger_location.html?.v=1">AOL Adds Location Capability for IM</a> <li><a href="http://yro.slashdot.org/yro/07/03/20/1932253.shtml">Residential Wi-Fi Mapping Database Revealed</a> </ul> <p>And here&#8217;s the company (Skyhook):</p> <ul> <li><a href="http://www.skyhookwireless.com/">http://www.skyhookwireless.com/</a> </ul> "Gifts Bespeak Relationships" https://inpropriapersona.com/articles/gifts-bespeak-relationships/ Thu, 22 Mar 2007 02:32:00 +0000 1dad173efcbe755c19c647340e0cf07e <p><a href="http://www.amazon.com/Gift-Imagination-Erotic-Life-Property/dp/0394715195%3FSubscriptionId%3D09YMJNJX651VN6CAZZ02%26tag%3Dcommentinprop-20%26linkCode%3Dxm2%26camp%3D2025%26creative%3D165953%26creativeASIN%3D0394715195"><img class="alignright" title="The Gift: Imagination and the Erotic Life of Property by Lewis Hyde" src="http://ecx.images-amazon.com/images/I/51WD277QSAL._SL160_.jpg" alt="" width="104" height="160" /></a>One of the specific narrative methods of establishing community, of creating and maintaining shared world-views, is gift exchange. In contrast to the exchange of commodities, the exchange of gifts establishes enduring connections between people.</p> <blockquote><p>It is the cardinal difference between gift and commodity exchange that a gift establishes a feeling-bond between two people, while the sale of a commodity leaves no necessary connection.</p> <p>&#8212; Lewis Hyde, p. 56</p></blockquote> <p>A gift, then, presented and represented within a narrative framework, works to establish a community within which more gifts are given and more narratives (re)constructed. It is this very circularity &#8212; for the &#8220;gift not only moves, it moves in a circle&#8221; (Lewis Hyde, p. 11) &#8212; of enduring gift relationships which serves so well to generate and maintain community.</p> <p>See: <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556803">But that Speaking Makes it So</a>.</p> "Balance and the 4th Amendment" https://inpropriapersona.com/articles/balance-and-the-4th-amendment/ Wed, 21 Mar 2007 01:55:00 +0000 ee38d0212c2f0711c4089381d54780bb <p>A fundamental point of contention in a democratic society is the need to balance the enforcement of laws with the rights of citizens. In the United States, the 4th Amendment to the Constitution protects the rights of citizens to be free from &#8220;unreasonable search and seizure.&#8221; Throughout our history, the exact meaning of this broad phrase has been debated, changed, affirmed and changed again, both because of changing societal norms and because of changes in technology. In the modern area, this is nowhere more visible than in the use of wiretaps and their development from early telegraphic use to their modern application of monitoring Internet communications of all sorts.</p> <p>See: <a href="http://web.archive.org/web/20090318063813/http://www.ekris.org:80/WiretapsInternet.html">Wiretaps in the Internet Age</a>.</p> "Prefaces, Prologues and Paratext" https://inpropriapersona.com/articles/prefaces-prologues-and-paratext/ Wed, 21 Mar 2007 01:51:00 +0000 8afca859e3ca8a6a468bc9159d4206c9 <p><a href="http://www.flickr.com/photos/fantomdesigns/2123832445/"><img class="alignright" title="&quot;the wisdom is in the pages&quot; by Flickr user fantomdesigns, used under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 license" src="http://farm3.static.flickr.com/2351/2123832445_cea310b643_m.jpg" alt="" width="240" height="160" /></a>A preface or prologue is a sort of pretext to the writing that follows it; it sets up the reader, as it were, to encounter the text that it introduces. It attempts to mediate then, between the world of the reader and the world of the text by making clear an <em>intention.</em> Now this intention may or may not be the intention of the author, after all, especially since a preface may be written by anyone: editor, publisher, famous writer, or even the original author, not fifty years older. This mediation is not without problems: it involves a reader posited by the author of the preface who is not necessarily the actual reader; in other words, what the preface really offers is a mediation between its own time, place, and context and the text that follows it. This preface, and all the matter that shares the problematic status of &#8220;almost&#8221; text, and that is not &#8220;the&#8221; text, but rather surrounds the text, is the &#8220;paratext.&#8221;</p> <p>In other words, paratext is the liminal matter that forms the bridge between the context of a text and the text itself. Following the definition of Gerard Genette in his book <em>Seuils</em>, the paratext lies between the text and the <em>hors-texts</em>, &#8220;out ce par quoi un texte se fait livre et se propose comme tel à ses lecteurs, et plus généralement au public&#8221; [all the ways in which a text makes itself a book and presents itself as such to its readers, and more generally to the public]: title, dedication, epigraph, etc.</p> <p>See: <a href="http://ssrn.com/abstract=1141062">A Pretext for Writing</a>.</p> "\WINDOWS\SYSTEM32\CONFIG\SYSTEM" https://inpropriapersona.com/articles/windowssystem32configsystem/ Tue, 08 Mar 2005 04:14:00 +0000 c14fe1c98fcd20a11e647b59356c9fbb <p>So what do you do when your wife&#8217;s computer says this?</p> <blockquote><p>Windows XP could not start because the following file is missing or corrupt: \WINDOWS\SYSTEM32\CONFIG\SYSTEM</p></blockquote> <p>Why, this of course: <a href="http://support.microsoft.com/kb/307545">How to recover from a corrupted registry that prevents Windows XP from starting</a></p> <p>Of course, we couldn&#8217;t find her Windows XP recovery CD, so we borrowed one from a neighbor (thank goodness for neighbors). Lots of command-line fun later (and randomly moving backwards in time to various &#8220;snapshots&#8221; until one worked) XP booted again! But only to the &#8220;Admin&#8221; user. No other user accounts existed. Back to the command line. Whee! (Why can&#8217;t MS include BASH? It gets really old typing full paths with no auto-complete and no command history&#8230;) Let’s mix and match snapshots! Let’s stir up those registry hives!</p> <p>Yes! We have users again! But no networking. No Ethernet, no 802.11b. What?</p> <p>Uninstall random stuff, starting with the virus checker. That did it&mdash;apparently an old Norton Anti-virus registry entry (the software was gone, but I recovered its registry entry, I guess) interfered with networking. What? What? That makes no sense, you say?</p> <p>And you’d be right. Not that it matters.</p> "Computer Science Professors’ Brief in Grokster" https://inpropriapersona.com/articles/computer-science-professors-brief-in-grokster/ Sun, 06 Mar 2005 04:02:00 +0000 ea0c33d5f12eacd76d89aca56045a3f0 <blockquote><p>Amici write to call to the Court&#8217;s attention several computer science issues raised by Petitioners and amici who filed concurrent with Petitioners, and to correct certain of their technical assertions. <em>First, the United States&#8217; description of the Internet&#8217;s design is wrong. P2P networks are not new developments in network design, but rather the design on which the Internet itself is based.</em> <em>(Ed. Emphasis mine.)</em> Second, a P2P network design, where the work is done by the end user&#8217;s machine, is preferable to a design which forces work (such as filtering) to be done within the network, because a P2P design can be robust and efficient. Third, because of the difficulty in designing distributed networks, advances in P2P network design—including BitTorrent and Respondents&#8217; software—are crucial to developing the next generation of P2P networks, such as the NSF-funded IRIS Project. Fourth, Petitioners&#8217; assertion that filtering software will work fails to consider that users cannot be forced to install the filter, filtering software is unproven or that users will find other ways to defeat the filter. Finally, while Petitioners state that infringers’ anonymity makes legal action difficult, the truth is that Petitioners can obtain IP addresses easily and have filed lawsuits against more than 8,400 alleged infringers. Because Petitioners seek a remedy that will hobble advances in technology, while they have other means to obtain relief for infringement, amici ask the Court to affirm the judgment below.</p></blockquote> <p>See: <a href="http://web.archive.org/web/20070715040103/http://www.eff.org/IP/P2P/MGM_v_Grokster/20050301_cs_profs.pdf">Amici Curiae Brief</a> (PDF)<br /> See also: <a href="http://www.freedom-to-tinker.com/archives/000776.html">Computer Science Professors’ Brief in Grokster</a></p> "Culture as a Map" https://inpropriapersona.com/articles/culture-as-a-map/ Fri, 04 Mar 2005 04:25:00 +0000 585e119e95a17978f8e7c7b0cc7e4933 <blockquote><p>It is significant that &#8220;culture&#8221; is sometimes described as a map; it is the analogy which occurs to an outsider who has to find his way around in a foreign landscape and who compensates for his lack of practical mastery, the prerogative of the native, by the use of a model of all possible routes.</p></blockquote> <p>— Pierre Bourdieu, <a href="http://www.amazon.com/exec/obidos/tg/detail/-/052129164X/104-1925592-7385500?v=glance">Outline of a Theory of Practice</a>, 1977</p> <div class="zemanta-pixie" style="margin-top: 10px; height: 15px;"><img class="zemanta-pixie-img" style="border: none; float: right;" src="http://img.zemanta.com/pixy.gif?x-id=a7eb6d72-ef94-489f-9a07-a474e72dab27" alt="" /></div> "U.S. bans juvenile executions" https://inpropriapersona.com/news/2005/u-s-bans-juvenile-executions/ Wed, 02 Mar 2005 04:42:00 +0000 9bc5f1fa02151300bdff933ddb35d64c <p>It&#8217;s nice to join the international community on occasion: <a href="http://www.reuters.com/newsArticle.jhtml?type=topNews&amp;storyID=7776184">Supreme Court Abolishes Juvenile Death Penalty</a></p> <p>Some interesting snippets from the ruling include:</p> <blockquote><p>Neither retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders, Justice Anthony Kennedy wrote in the 25-page opinion. &#8220;It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.&#8221;</p></blockquote> <p>The article from Reuters goes on to note:</p> <blockquote><p>The United States was the only country in the world that still gave official sanction to the juvenile death penalty, Kennedy said in his ruling.</p> <p>He noted the U.N. Convention on the Rights of the Child, which prohibits the juvenile death penalty, has been ratified by every country except Somalia and the United States.</p> <p>Only seven countries other than the United States have executed juvenile offenders since 1990, he said. They are Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China.</p></blockquote> <p>But we were in such good company!</p> <p>On the other hand, there were four dissenters, including the Chief Justice:</p> <blockquote><p>Chief Justice William Rehnquist and Justices Sandra Day O&#8217;Connor, Antonin Scalia and Clarence Thomas dissented.</p> <p>&#8220;I would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgments of the nation&#8217;s legislatures,&#8221; O&#8217;Connor said.</p> <p>Scalia said the court&#8217;s interpretation of the U.S. Constitution should not be influenced by other nations.</p></blockquote> <p>Yes, of course the courts should (1) defer entirely to the legislature and (2) ignore the rest of the world. That will ensure that the Judicial Branch remains a check on the other two branches as intended by the U.S. Constitution and it will also ensure we remain in a leadership role in the world.</p> "Random Articles" https://inpropriapersona.com/articles/random-rss.xml Mon, 01 Jan 0001 00:00:00 +0000 005f05cf4b3710a007e984acd918ae98