Monthly Archives: April 2010

I Always Feel Like Somebody’s Watching Me

M. Ryan Calo, People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, 114 Penn. St. L. Rev. (forthcoming 2010), available at SSRN.

To glimpse the future of information privacy law, you should look at the work coming out of two Stanford Law School centers, the Center for Internet and Society and the CodeX center. In the past few years, these centers have housed a steady stream of fellows and clinical professors who have written some of the most interesting, vibrant, and future-looking scholarship in this field. For example, Lauren Gelman’s article on “blurry-edged” boundaries—already lauded in these pages—is a significant contribution, one that has advanced our understanding of the complicated relationship between social networks and privacy. Another excellent example is Structural Rights in Privacy, written by Harry Surden—now my colleague at the University of Colorado—during his stint as a fellow at CodeX, about how technology sometimes protects privacy in ways we fail to appreciate until the technology changes. I write now to focus on another scholar in the Stanford centers, Ryan Calo, who has embarked on a fascinating project with an excellent article, People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, forthcoming in the Penn State Law Review.

Calo focuses on “technologies designed to emulate people,” such as robots with expressive eyes or software assistants designed to look like people. We’ve come a long way since Microsoft’s Clippy the paperclip first annoyingly noticed that it looked like I was writing a letter. Computer scientists, roboticists, and companies have poured time and creative energy into designing interfaces and devices that look and act human, and they’ve made great strides in the process. To document these advances, Calo cites with care a rich, emerging, technical literature, importing dozens of studies and papers into law, saving the rest of us a lot of heavy research lifting. Continue reading "I Always Feel Like Somebody’s Watching Me"

Rethinking “International Law”

Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1792 (2009).

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794) Continue reading "Rethinking “International Law”"

Time to Rethink Prudent Investor Laws?

Stewart E. Sterk, Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?, 95 Cornell L. Rev. (forthcoming 2010), available at SSRN.
Jeffrey Cooper

Jeffrey Cooper

With the stock market of recent years dashing so many hopes and dreams, investors are all asking the same questions:  How could we have let this happen?  How can we be sure it won’t happen again?  Included among those asking these questions are the beneficiaries of countless trusts who have witnessed significant declines in the value of their trust portfolios.  In his article “Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?,” Professor Stewart E. Sterk joins this search for answers, ultimately concluding that modern prudent investor laws fail to adequately protect trust beneficiaries in troubled economic times.

Professor Sterk’s article consists of three major Parts.  In Part I, Professor Sterk lays the historical framework for his analysis by summarizing the evolution of laws governing trust investment management.  In particular, he explores how two widely-accepted economic theories regarding the behavior of financial markets, modern portfolio theory (“MPT”) and the efficient capital market hypothesis (“ECMH”), came to influence trust investment law.  Sterk chronicles how both the Restatement (Third) of Trusts and the Uniform Prudent Investor Act wholeheartedly embraced MPT and ECMH in a quest to encourage the investment of trust funds in the manner these theories suggested would maximize the economic interests of trust beneficairies. Continue reading "Time to Rethink Prudent Investor Laws?"

Government Dragnets

All commentators agree that the Fourth Amendment’s second, “Warrant Clause”—providing that search and arrest warrants be based on probable cause and describe with particularity the place to be searched and person or items to be seized—was meant to do away with general warrants. The general warrant is still very much with us today, however. Without any individualized suspicion, homes and businesses are subject to health and safety inspections, school children must undergo drug testing, motorists are stopped at roadblocks and checkpoints, important documents maintained by banks, credit card companies and other entities are mined for data, pedestrians in our major cities are monitored by camera systems, and everyone’s personal effects are uniformly scanned and searched at borders, airports, and various other major travel hubs.

The Supreme Court has pretty much allowed all of this to go on without any constitutional restriction.  In the case of drug interdiction, roadblocks, and drug testing of pregnant mothers, it has declared that individualized suspicion is needed.  But otherwise the Court has either held that the Fourth Amendment does not apply because the government action is not a search (as with data mining) or concluded, in effect, that any government search and seizure program that avoids irrationality is permissible.  Many commentators have deplored this state of affairs and proposed a number of alternatives, usually either requiring some sort of individualized suspicion (which would probably put an end to all general searches and seizures) or adopting a variant of strict scrutiny analysis, which would require courts to determine whether the program is narrowly tailored to meet a compelling state need (and would involve some very difficult, and arguably improper, judicial calculations about programmatic costs and benefits). Continue reading "Government Dragnets"

New Jotwell Section: Jurisprudence

Today we inaugurate a new Jotwell section on Jurisprudence, edited by Prof. Brian Bix of the University of Minnesota School of Law and Prof. Brian Tamanaha of the Washington University School of Law. Together they have recruited a stellar and international team of Contributing Editors.

Expect other new sections in the coming weeks and months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Another Ride on Vehicles in the Park

Frederick Schauer, A Critical Guide to Vehicles in the Park, 83 N.Y.U. L. Rev. 1109 (2008).

“No vehicles in the park”—this deceptively simple rule has commanded the attention of legal theorists ever since the mid-twentieth century tussle between jurisprudential heavyweights Lon Fuller and H.L.A. Hart.  “It is the most famous hypothetical in the common law world,” leads Frederick Schauer, in his terrific analysis of the debate.   Schauer lays out the position of each protagonist, he explains how their respective positions are linked to (and detachable from) their broader theories of law, he indicates what each got right and each got wrong, and he identifies the relevance of the debate to central issues in legal theory and judging today.

“A Critical Guide” is admirably clear, it delivers a passel of insights, it is leavened with dashes of humor, and it comes in at an efficient 35 pages.  Schauer draws out links to legal realism and the legal process school, to Hart’s later engagement with Ronald Dworkin, to debates over Riggs v. Palmer and Church of the Holy Trinity v. United States, as well as touches on other familiar veins in U.S. legal theory.  Along the way, he treats the reader to edifying discussions of contextual meaning and shared acontextual understanding; of the difference between vagueness and “open texture;” of the theoretical and the empirical aspects of the “no vehicles” debate; of the distinction and interaction between linguistic certainty and legal certainty, and much more. Continue reading "Another Ride on Vehicles in the Park"

Size Matters: Wealth Accumulation as a New Mission in Higher Education

Peter Conti-Brown, Scarcity Amidst Wealth: The Law, Finance, and Culture of Elite University Endowments in Financial Crisis.  Available at SSRN

The question of why universities seem to hoard their endowments had become a Senate-level issue prior to the Panic of 2008, and now that normalcy slowly is returning the issue promises to become a live one again.   Simply put, in the years preceding the panic, tax-exempt institutions of higher education appeared to be growing enormous endowments while spending only a tiny proportion of them on their current needs.  The issue became more sharply illustrated as, in the face of significant endowment losses during the crisis,  elite universities with the highest endowments chose to cut budgets, lay-off employees, freeze hiring and salaries, close libraries, and cancel capital projects, among other measures, rather than maintain their then-current levels of spending, at the same time remaining in possession of endowments that still counted in the billions.  Conti-Brown asks why, and gives a deeply thoughtful and creative explanation for the endowment puzzle.  His answer:  endowment building — the accumulation of wealth for its own sake — has taken its place as one of the missions of the institutions, alongside their pedagogical and scholarly pursuits.

As one might imagine, universities are highly secretive about their endowments, and Conti-Brown has done a good job of obtaining such information as he could, focusing on the universities with the five highest endowments: Harvard, Yale, Princeton, Stanford, and MIT.   Important among this is that despite the average 30% drop in endowments at these schools (an assumption Conti-Brown makes based on the data he has), endowments remained at the same levels they had attained in 2005 and 2006.  Thus the budget cuts seem all the more puzzling and the plot thickens. Continue reading "Size Matters: Wealth Accumulation as a New Mission in Higher Education"

The Corporate Pyramid Fable

Steven A. Bank & Brian R. Cheffins, The Corporate Pyramid Fable (UCLA Sch. of Law, Law-Econ. Research Paper No. 10-01; ECGI-Law Working Paper No. 146/2010, 2010), available at SSRN.

There is nothing I like more when reading scholarly work than the thoughtful interrogation of long-standing myths about a particular phenomenon.  Take, for example, the article by economists Nicola Persico, Andrew Postlewaite, and Dan Silverman, “The Effect of Adolescent Experience on Labor Market Outcomes:  The Case of Height” (  For years economists (and frankly any casual observer) noted that taller people make more money and seem to command greater power.  This was widely explained as a bias in favor of height (or as discrimination against short people).  These three economists took that hypothesis and explored whether there was a stronger determinant of success as reflected in labor market returns.  Surprise!  It turns out if you look at height of white males over time against labor market success you discover that boys who were tall in high school have stronger labor market returns.  Adult height is only relevant to the extent that it correlates with youth height.

Bank and Cheffins’ paper is of the same ilk.  They take a look at a long standing puzzle:  why does the United States lack the corporate pyramid structures common in other countries of the world?  In some countries it is common for a successful individual or wealthy family to have a small stake in the overall operations of cascading companies, but to have a sufficient stake in the chain that they control billions of dollars worth of corporate activities with only a limited personal or family investment.  These arrangements have given rise to a variety of well documented concerns, including that a small number of investors exercise enormous control at the expense of minority shareholders, that tiny elites are given disproportionate access to corporate power, and that these investors have huge sway with government. The often told example of this kind of arrangement, retold by Bank and Cheffins, is of the unmarried brothers, Oris Paxton Van Sweringen and Mantis James Van Sweringen who were able to invest less than 20 million dollars but control eight class I railroads with combined assets of over two billion dollars. Continue reading "The Corporate Pyramid Fable"

Going Rogue

Elizabeth Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009).

Maybe it’s because I’m related to card-carrying members of the Tea Party movement, but I have a thing about government secrecy.  It makes me nervous.  In my own scholarship I have fretted a lot over state encroachments on personal privacy.  But when I really dig down deep, the truth is that I worry much less about what the government knows about me than I worry about what I do not know about it.

This probably explains my current research project, which is about (naturally) government secrecy in criminal justice.  It probably also explains my admiration for articles like Alexandra Natapoff’s Snitching:  The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645 (2004), and Jacqueline Ross’s The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 Am. J. Comp. L. 493 (2007).  Most recently, it certainly accounts for my fascination with and applause for the article I want to discuss here: Elizabeth Joh’s Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009). Continue reading "Going Rogue"

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