Law

There’s a fantastic symposium issue out of NYU this month, devoted to evolution and innovation in contract terms.  There are articles by the ridiculously productive trinity of Choi/Gulati/Posner, a wild piece by Kevin Davis on Contracts as Technology, and a very cool empirical paper by Marotta-Wurgler and Taylor on evolving terms in standard form contracting online.  I’m obviously biased toward empirical work on this exact topic, so I’m a sucker for this stuff.  But I do think that this kind of empirical and theoretical work is where contract scholarship should be heading in the next 10-20 years.  Check it out.

If you want to know what kind of men could commit the grotesque act this week in butchering a man on a London street while posing for cameras, you might want to meet his teacher. In Tripoli, Lebanon, Syrian-born cleric, Omar Bakri, founder of banned British Islamist group Al Muhajiroun, saw the same video that we saw. While we recoiled at the savagery, Bakri rejoiced in what he called the “courage” and faith of Michael Adebolajo in murdering Lee Ridgy. Our disgust was matched by the cleric’s delight in seeing a former student murder in the name of Islam. He gave the interview as his son, Osama, played at his feet . . . yes, named after that Osama. Bakri said that “When I saw the footage I recognized the face immediately . . . A quiet man, very shy, asking lots of questions about Islam.” He describes the killer as “standing firm, courageous, brave. Not running away. Rather, he said why he carried (it out) and he wanted the whole world to hear it.” He assured everyone Adebolajo is now in paradise since “The prophet (Mohammad) said an infidel and his killer will not meet in Hell. That’s a beautiful saying. May God reward (Adebolajo) for his actions.” He added the question “was he a man or not?” No, he hit an innocent man with his car and then butchering his body. He is a murderer, and you Mr. Bakri, you are the mentor of a murderer.

In the hubbub surrounding this week’s acquisition of the blogging platform Tumblr by born-again internet hub Yahoo!, I thought one of the most interesting observations concerned the regulation of pornography. It led, by a winding path, to a topic near and dear to the Concurring Opinions gang: Section 230 of the Communications Decency Act, which generally immunizes online intermediaries from liability for the contents of user-generated content. (Just a few examples of many ConOp discussions of Section 230: this old post by Dan Solove and a January 2013 series of posts by Danielle Citron on Section 230 and revenge porn here, here, and here.) Apparently Tumblr has a very large amount of NSFW material compared to other sites with user-generated content. By one estimate, over 11% of the site’s 200,000 most popular blogs are “adult.” By my math that’s well over 20,000 of the site’s power users. Predictably, much of the ensuing discussion focused on the implications of all that smut for business and branding. But Peter Kafka explains on All Things D that the structure of Tumblr prevents advertisements for family-friendly brands from showing up next to pornographic content. His reassuring tone almost let you hear the “whew” from Yahoo! investors (as if harm to brands is the only relevant consideration about porn — which, for many tech journalists and entrepreneurs, it is). There is another potential porn problem besides bad PR, and it is legal. Lux Alptraum, writing in Fast Company, addressed it.  (The author is, according to her bio, “a writer, sex educator, and CEO of Fleshbot, the web’s foremost blog about sexuality and adult entertainment.”) She somewhat conflates two different issues — understandably, since they are related — but that’s part of what I think is interesting. A lot of that user-posted porn is violating copyright law, or regulations meant to protect minors from exploitation, or both. To what extent might Tumblr be on the hook for those violations? First, some background for those less obsessed with intermediary liability. Generally, every site built on massive quantities of user-generated content faces a similar problem: potential liability for illegal things its users do. U.S. law addresses these issues differently depending on the underlying legal infraction. For most of them, Section 230 effectively immunizes the intermediary from any liability. If a user-generated post on Tumblr contains defamation, or an invasion of privacy, or harassment — as many porn blogs surely do — the company cannot be sued. Some intermediaries may take down such material voluntarily, but not under legal compulsion. (It is different in Europe, of course). Section 230 does not protect intermediaries from liability for intellectual property infringement. Instead, that is the function of the notice-and-takedown regime of the Digital Millennium Copyright Act. Under the best and dominant interpretation of the law, Tumblr still has no obligation to police its user-generated content for unauthorized copies. Rather, intermediaries must provide a means for copyright owners to contact them and complain of unlicensed uses. Once notified, generally they must remove infringing content. Not surprisingly, Alptraum’s post suggests that most of the porn on Tumblr is infringing someone’s copyright. Yet these IP issues are quite familiar and not at all limited to sexually explicit material. As long as Yahoo!/Tumblr continues to comply with the DMCA, this shouldn’t present too serious a legal obstacle, no matter how little clothing people wear in user-posted photos. (By the way, Eric Goldman has a very interesting ongoing project where he compares these two safe harbors and others to divine the ideal form of safe harbors.) What’s unique about porn is another layer of regulation that Alptraum also discusses: By federal law, anyone who create

(David Bernstein) has been published at Reason.com. It’s not a favorable review–I argue that Katznelson grossly exaggerates the extent to which FDR was stymied from pursuing a progressive agenda by the power of southern Congressmen, and that he is unpersuasive in excusing some of Roosevelt’s worst policies on the grounds that the alternative was to put democracy in grave peril. But the book is even worse than the review lets on. First, there are many times when the subject at issue cries out for the author to display at least a rudimentary understanding of economics, but he never does. Second, and more important, while Katznelson’s prose is fine, the book is both a disorganized mess, with little apparent rhyme or reason as to which topics the author covers and in how much detail, and way too long. To take just one very minor but telling example of unnecessary detail that clogs the narrative, we learn that Sen. Theodore Bilbo favored “loud check suits and brash ties.” That would be relevant information for a biography of Bilbo, but what does it tell us about “the New Deal and the Origins of Our Times” (the subtitle of the book)? Overall, the book reads as if Katznelson and/or his research assistants gathered lots of information on a bunch of different topics from a particular historical period, and then basically dumped the information into the book, regardless of whether and to what extent it formed a consistent narrative. As long-time readers know, I think most books written by academics are too long, and this one, in particular, could easily have been cut by at least 40%. On the other hand, for favorable reviews here is Kevin Boyle in the New York Times, and Robert Kaiser in the Washington Post.

Elizabeth A. Sheehy (University of Ottawa - Faculty of Law (Common Law)) has posted Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women (Sexual Assault in Canada: Law, Legal Practice and Women’s Activism, Elizabeth Sheehy,...

Rosa Brooks (Georgetown University) has posted Democracy Promotion: Done Right, a Progressive Cause (Democracy, at 18-25, Winter 2012) on SSRN. Here is the abstract:With NATO membership, but its supporters would at least in principle welcome institutions that might be able to pick up the slack as they orchestrate the retraction of America’s geopolitical commitments. Nonetheless, the policies pursued by conservatives are likely to do more harm than good to the Atlantic partnership. Europeans have little stomach for the brash unilateralism favored by neoconservatives. Nor do they deem wise calls from the right for NATO to offer membership to Georgia and Ukraine, a move that would provoke Russia and saddle the alliance with new and onerous commitments. As for the Tea Party, mainstream conservatives in Europe do not relate to either the isolationism or the social and fiscal conservatism of America’s far right. Simply put, an America that plays by conservative rules abroad and at home is not an appealing partner for Europe. American progressives are the natural political allies of Europeans and would therefore provide the Atlantic community a much firmer foundation of affinity and interest. Progressive leadership at home is essential to the nation’s political and economic renewal, which in turn is the foundation for progressive leadership abroad. Since World War II, the United States has been dramatically successful in making the globe more stable, prosperous, and liberal. The recipe for ongoing success in this mission is no different than in the past: a solvent and centrist America reliant on a progressive combination of power and partnership to safeguard the national interest while improving the world.Recommended.

Posted by D. Daniel Sokol Martin Obradovits (University of Vienna - Economics) has written on Excessive supplier pricing and high-quality foreclosure. ABSTRACT: This article shows that entry of a more input-effcient, but lower quality downstream producer, compared to a high-quality...

President Barack Obama recently came out to remind people that “Leaks related to national security can put people at risk.” He however denied knowledge of this and the other scandals. In the past, Obama has been able to weather criticism by civil libertarians due to his iconic status with many citizens. This time is different. The media (rather belatedly) is seeing his Administration in a different light as a true threat to liberty. Now, Obama has given a speech proclaiming that he now thinks that reporters should not fear investigation for just doing their jobs so he has ordered an investigation . . . by Eric Holder and the Justice Department. Of course, it was disclosed on the same day that it was Holder who approved the abusive targeting of Fox reporter Jeff Rosen. Obama stated yesterday “Journalists should not be at legal risk for doing their jobs.” Once again, civil libertarians are left scratching their heads. There have been complaints for years about the abusive targeting of journalists and the treatment of reporting by the Obama Administration as part of a criminal conspiracy with whistleblowers. Yet, Obama (once again) simply comes forward and expresses concern as if this is the first time that he has heard about the abuses of his Administration. I recently published a column on how Barack Obama has publicly assumed many of the powers that were once cited as the basis for the investigation and attempted impeachment of Richard Nixon. One of those areas was the Obama Administration’s crackdown on journalists. Richard Nixon was denounced for using the Espionage Act of 1917 to target Daniel Ellsberg. Obama has brought twice the number of such prosecutions of all prior presidents under the Act. So now Obama has decided to act . . . by going to the very man responsible for this crackdown on both journalists and whistleblowers: “I have raised these issues with the attorney general, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. And I have directed the attorney general to report back to me by July 12th.” That’s it? Holder will “hear their concerns” and report back to him? What is astonishing is that this speech was quickly embraced by Obama supporters as proof of principle from the President. Holder signed off on a search order targeting a journalist as a possible criminal co-conspirator for speaking with a source. He will now serve as some type of Obama therapy group leader on the anger and hurt felt by media organizations. I can only imagine the anatomical doll depicting the first amendment that Holder will pass around to allow journalists to voice their feelings and fears. The Obama Administration — and yes, the President himself — is responsible for the greatest attack on a free press in this country in decades. His solution is a confab with the man targeting journalists. Notably, Obama insisted that analogies to Richard Nixon were misplaced. On that I must agree. Even Nixon would blush giving a speech like this.

Rep. Scott DesJarlais (R-TN) is a pro-life Republican who has long run on family values. Those values however were no where in sight in the recent findings of the Tennessee Board of Medical Examiners which ordered DesJarlais to pay a fine for having sexual relations with patients and allegedly pressuring one patient to get an abortion. However, the cost of such conduct will be $500. DesJarlais ran on the slogan: “Pro-life and PROUD OF IT: Dr. D’s Prescription for Tennessee: Protect our traditional Tennessee values: Scott is pro-gun, pro-life and pro-marriage and PROUD OF IT.” Well, at least he is still pro-gun. DesJarlais responded to the fine by saying “I take responsibility for past mistakes and am happy to get this resolved.” He has announced that “God’s forgiven me. … I simply ask my fellow Christians and constituents to consider doing the same for me.” Just to be clear, again, Desjarlais was accused of pressuring one of the women to get an abortion and allegedly prescribed her unnecessary pain medication and smoked marijuana with her. However, he has not escaped responsibility. He will pay $500.

Attorney General Eric Holder recently appeared before the House Judiciary Committee and denied any involvement in the abuse searches targeting the Associated Press by the Obama Administration. Holder seemed to morph with his predecessor Alberto Gonzales with a mantra of “I have no knowledge” and “I had no involvement” in the scandal. It was a disturbing defense in one of the greatest attacks on the free press in modern times. Now, however, Holder’s fingerprints have been found on an equally disturbing targeting of a Fox reporter, James Rosen. As with the Associated Press, Rosen was targeted for simply speaking with a source in a story involving classified information. Even his parents telephone information was seized in the abusive operation where Rosen was declared a “possible co-conspirator” in violations of the Espionage Act. Holder’s order led to Justice Department investigators secretly seizing his private emails because he was found to have “asked, solicited and encouraged … (a source) to disclose sensitive United States internal documents and intelligence information.” That is called being a reporter. It is astonishing to see apologists continuing their effort to excuse the record of the Obama Administration in attacking reporters and whistleblowers. While various public interest and media groups have denounced these acts, many still cannot get themselves to criticize President Obama for this disgraceful legacy. Obama has been aware of the criticism for targeting reporters and whistleblowers for years and has done nothing — just as he is aware of the complaints of civil libertarians over kill lists, torture, and other abusive policies. He has not simply destroyed the civil liberties movement in the United States, as previously discussed, but the very soul of the Democratic Party which once stood for principles of privacy and the free press. These issues were placed squarely before Holder in the Rosen search and he did what he has done in so many other constitutional conflict: he kicked principle into the gutter. He has shown again that his view of constitutional protections borders on open contempt. He is the very image of what Louis Brandeis once described in his dissenting opinion in Olmstead v. United States, 277 U.S. 438 (1928): Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Source: Politico