Monthly Archives: January 2010

Bringing Blurry Online Privacy Into Sharp Relief

Lauren Gelman, Privacy, Free Speech, and “Blurry-Edged” Social Networds, 50 B. C. Law. Rev. 1315 (November 2009).

In this article Lauren Gelman discusses the tensions between free speech and privacy concerns on what she calls social networks with “blurry edges,” where information primarily intended for an audience comprised of friends and family members is available for the whole world to access. While these networks facilitate online community building, she says, they also create “an illusion of privacy that the law fails to recognize.” People think they have privacy through obscurity online, so they do not make efforts to fence potential trespassers out of their e-spaces. And they want to be accessible to friendly visitors, so they forgo the virtual gates and vicious dogs.

Gelman illustrates the concept in meet space by analogizing to the white pages of a phone book. Though most people do not want to receive calls from strangers, they prefer to be listed because they want some people to be able to ascertain their phone numbers and call them, some of the time. Online, people post pictures and other information without password protecting it, perhaps believing that people who do not have a wholesome interest in the material will bypass or ignore it. This creates externalities:  When the openly available content references or depicts other people, those referenced folks are subject to the same level of exposure, but without having any choice in the matter. The more personal the information posted is, the more vulnerable everyone involved becomes. Continue reading "Bringing Blurry Online Privacy Into Sharp Relief"

The Mismatch Problem: Why Election Law Isn’t Always Built for the Electorate

David Schleicher, Why Is there No Partisan Competition in City Council Elections? The Role of Election Law, 13 J. L. & Pol. 419 (2007).  SSRN Version David Schleicher, What if Europe Held an Election and No One Cared? (work in progress, available here)

Two articles by David Schleicher fit nicely into the Jotwell category of “things I like (lots).”   Schleicher is an assistant professor at George Mason Law School and a rising star in the field of election law.  Both pieces explore what he calls the “mismatch” problem—what happens when we ask voters to perform a constitutional role without the tools they need to do so.  The first piece explains why local elections in the U.S. don’t do much to hold local officials accountable.  The second piece explains why the European Parliament lacks “any semblance of democratic control” despite regular elections.

How is it possible to have elections without accountability?  Schleicher isn’t making any of the by-now-familiar arguments about incumbents’ use of gerrymandering, campaign finance, and other election devices to keep their seats.  Instead, he makes a far more provocative claim:  election laws interact with the voters’ own shortcomings to produce elections that are, in Schleicher’s view, meaningless. Continue reading "The Mismatch Problem: Why Election Law Isn’t Always Built for the Electorate"

When Criminal and Immigration Law Collide

Nancy Morawetz, Rethinking Drug Inadmissibility, 50 Wm & Mary L. Rev. 163 (2008).
Jennifer Chacon

Jennifer Chacon

One of the most interesting (and frequently distressing) aspects of teaching and writing about immigration law is the opportunity it affords for studying the interplay between immigration regulations and the criminal law. A number of scholars, including contributing editor Jack Chin, have turned their attention to this interplay before. More recently, in Rethinking Drug Inadmissibility, Nancy Morawetz explores how changes to drug laws and to the inadmissibility standards in the federal immigration law have generated an inflexible, zero-tolerance immigration policy on minor drug use that is in dire need of reexamination.

Because her article highlights the interaction between the criminal law and the immigration regime, it is essential reading for anyone interested in criminal justice. It is also an interesting read for anyone interested in how a few small and relatively thoughtless changes to a complex statutory scheme can have tremendously harsh practical effects. Finally, it is a critical read for everyone who hopes to have a better understanding of upcoming legislative attempts to enact some form of comprehensive immigration reform. As Morawetz urgently notes, “[p]roposals for comprehensive immigration reform in 2007 all included, as a minimum requirement, that the individual be ‘admissible.’” Id. at 182. Thus, absent legislative attention, the sweeping drug inadmissibility rules that Morawetz discusses in this article will likely bar a number of noncitizens with very old and very minor past drug use from normalizing their immigration status, even if the equities of their individual case should dictate a different result. Continue reading "When Criminal and Immigration Law Collide"

The Promise–and Limits–of Economics in Law

Alessandro Turina & Nicolo Zingales, Economic Analysis and Evaluation of “Fair Prices”: Can Antitrust and International Taxation Learn from Each Other? (Comp. Research in Law & Political Economy, Research Paper No.  51/2009, Vol. 5, No. 10, 2009), available at SSRN.

My teaching and research generally focuses on taxation, especially international tax.  However, I have always had an outsider’s fascination with antitrust law and policy. So when I saw a recent article entitled: Economic Analysis and Evaluation of ‘Fair Prices’:  Can Antitrust and International Taxation Learn from Each Other? I was intrigued and couldn’t resist.  The article, by Alessandro Turina and Nicolo Zingales explores the economic analysis of pricing and comparability in the transfer pricing regime of international tax and in the competition (antitrust) law of excessive and predatory pricing.  Their perspective is global as they draw upon U.S. law, E.U. law, OECD practice, and the distinctive outlook of various European countries.

The authors are restrained in their claims and comparison–they acknowledge the differences in purpose and structure between transfer pricing and antitrust laws.  But compelling parallels exist that command our attention.  Both regimes rely heavily on price-based analysis in which the underlying methodologies struggle to determine “comparability.”  Moreover, both strive to find the appropriate balance among legal certainty, administrability, and burden of proof as between business and government.  The article provides a baseline introduction to transfer pricing and competition law, thereby allowing the generally informed reader the ability to understand the place of price analysis in each regime and the challenge of determining comparability. Continue reading "The Promise–and Limits–of Economics in Law"

Unknown Unknowns: Uncertainty, Contracts, and Crisis

Eric L. Talley, On Uncertainty, Ambiguity, and Contractual Conditions, 34 Del. J. Corp. L. 755 (2009), available at SSRN.

It may be characteristic of the human condition generally, as much as complex transactions particularly, that we don’t sweat the details.

It should come as little surprise, then, that even parties to significant commercial contracts, drafted by able counsel, are often caught on the shoals of boilerplate terms that received something less than their full attention at the time of drafting.  In an area of interest to me, for example, sovereign debt contracts drafted over the last century routinely included so-called pari passu clauses–that is, until Peru’s otherwise unremarkable debt restructuring in 1997 was stymied by a New York-based vulture fund that sought full payment on its bonds, based on that theretofore mysterious provision. Continue reading "Unknown Unknowns: Uncertainty, Contracts, and Crisis"

Can Legal Education Be Globalized?

Harry W. Arthurs, Law and Learning in an Era of Globalization, 10 German Law Journal 629, available at SSRN.

Law is parochial yet it plays a considerable role in globalization. With few exceptions legal education has continued listing towards the local away from the global. Harry Arthurs, along with Carole Silver and Margaret Thornton, is one of the few scholars to investigate globalization and legal education. Arthurs has spent many years thinking about legal education as befits one who has been both Dean of Osgoode Hall Law School and President of York University in Canada and written one of the major reports on legal education. (See Julian Webb’s reflections on the 1983 “Arthurs’ Report”.)

The starting point is that political economy has profound influences on the shaping of legal education via the research agendas of legal academics, types of jobs available for graduates, regulatory structures created by government, licensing of law schools, etc. As economies and legal markets adapt to globalization so does the knowledge it is perceived to need. Law schools like to promote themselves as global either in their names—Jindal Global Law School—or in their courses and faculty. Continue reading "Can Legal Education Be Globalized?"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Samuel Estreicher
Dwight D. Opperman Professor of Law; Co-Director, Dwight D. Opperman Institute of Judicial Administration; Director, Center for Labor and Employment Law, New York University School of Law Continue reading "Meet the Editors"

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Bridget J. Crawford
Pace Law School Continue reading "Meet the Editors"

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Brian Bix
Frederick W. Thomas Professor of Law and Philosophy,
University of Minnesota Continue reading "Meet the Editors"