Blogging Break

Sorry, faithful readers, but I will be unable to blog much, if at all, for the next couple of weeks. Look out for my return on or about March 12.

No Response

No response from any AALS official to my messages of yesterday. I know they're busy, but you might think that someone could reply.

Dumb Smart People

You might think that an organization of law professors would know how to conduct business in reasonably smart ways. But you would be wrong.

I just got a message from the AALS -- the Association of American Law Schools -- asking me to update my information in the AALS Directory of Law Teachers. In the past, they've snail-mailed every law professor a paper form to be filled out and returned. This year, I believe for the first time, they've switched to an electronic system. The e-mail asks that we each login to the AALS website and update our information electronically.

Great idea. There's just one thing. To login, we need our username and password. These were included in the e-mail. And guess what? Both the username and password are trivially deducible from the law professor's name. I won't post the exact details, but let's just say that I now know the AALS username and password for every law professor in the country. I could change any of their directory entries. Any of them could change mine. Well, actually, they couldn't, because I immediately logged on and changed my password. But I bet 98% of law professors haven't done that yet. So if you'd like to go crazy with the AALS Directory, now's your chance.

This has got to be the worst security system ever devised. I e-mailed the President and Executive Director of the AALS to suggest that they shut down the system immediately and keep it down until they institute proper security. I'll let you know if they respond.

Facebook Follies

Facebook recently alerted its users that although they could delete content (text, pictures) from their profiles at any time, Facebook had the right to retain archived copies of the material. Following outraged user reactions, Facebook has backed down. It has acknowledged that users own their content.

In fairness, Facebook never exactly claimed that it would own anything users posted on the site; reserving the right to retain archived copies is pretty different from claiming ownership, which would have meant that Facebook could do anything it wanted with the material. My sense is that Facebook was just covering itself in case, as is likely, it doesn't always succeed in deleting everything every user wants deleted.

But at the same time, Facebook, of all websites, should have been alert to the sensitivities of content control in the digital age. The Internet is challenging our understanding of what makes sense in intellectual property rights in many ways. Central sites like Facebook must know that they are in the vanguard and that their every moved will affect millions of users. Have a care, Facebook, whenever you change that boring fine print in the terms of use.

More Trademark Abuse

Good story on yet another attempt to use trademark rights to limit web content. The law firm Jones, Day claimed that a website's link to the web bio of one of its lawyers, Jacob Tiedt, infringed the Jones, Day trademark.

Obviously, the claim is ridiculous. Trademark infringment depends on likely consumer confusion. Everyone understands that the web contains links to external content. You don't imagine that my blog is sponsored by Slate Magazine because of the first link, do you? And the second link doesn't imply association with Jones Day, either.

Sue me, Jones Day. Let's get a ruling on your trademark abuse.

D.C. Vote Advances Toward Unconstitutionality

The day when the D.C. Voting Rights Act is finally declared unconstitutional came closer, as the bill passed a Senate committee by a vote of 11-1. Although the bill fell 3 votes short of avoiding a filibuster in the last Congress, the Democrats' big gains in the Senate suggest that the bill could actually become law this year.

Sorry, it's still unconstitutional. Look, this isn't complicated. The Constitution provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." Each representative is required to "be an Inhabitant of that State in which he shall be chosen." D.C. is not a state and Congress can't just pretend that it is. Full analysis here and here.

Besides, the Voting Rights Act is still a half-measure that wouldn't solve the problem of taxation without representation. It would be nice to have a Representative in the House of Representatives, but we need Senators too. Until we have both, the District will continue to be a sad exception to American principles of democracy.

More Discrimination in the Commonwealth

The great state (pardon me, commonwealth) of Virginia just can't stop coming up with discriminatory driving laws. First it was the "abusive driver fees," under which if you drove too fast you could get hit up for a "fee" of $1,050, on top of the normal $200 ticket, but only if you were from Virginia -- the fee wouldn't apply to out-of-staters who drove at the same speed. That got shot down as unconstitutional.

Now, Virginia's Senate has decided that drivers should be ticketed for using a cell phone while driving -- but only teenagers. The current rule is that teenage drivers are prohibited from using a cell phone while driving, but can be ticketed for it only if they are pulled over for another violation. Apparently there's no prohibtion against adults using cell phones while driving.

Look, if cell phone use while driving is dangerous, it's dangerous. I seriously doubt that 50-year-olds are handier with their cell phones than teenagers -- if anything, the reverse seems more likely. Teens are probably worse at driving in general, but whatever added danger is involved in cell phone use, I expect it applies to everybody. Virginia needs good safe driving laws, but they should apply fairly.

. . . And Counting

Are you wondering what's happened to that Minnesota Senate recount? The answer is that it's dragging on. The three-judge court hearing the case is receiving hundreds of pieces of evidence and the two sides want to call lots of witnesses -- perhaps even officials from all of Minnesota's 87 counties. One of the judges has said that the court will "make sure that every legally cast and wrongfully rejected ballot is opened and counted," but when and how that will happen is unclear.

The trial illustrates some of the difficulties of judicial review of administrative action. Judicial review is an important, indeed essential, step in the process. Without it, administrative agencies can and may do anything they want, without regard to legality. But judicial review can be a mess. Hundreds of officials were involved in the initial recount, which took weeks. Chaotic as it was, it at least had some semblance of a standardized process -- because it was conducted by the agency charged with doing it. Everyone worked hard, ballots were painstakingly considered, and a result achieved.

Now the whole thing is in the hands of three judges who, as far as I can tell, have no particular expertise in election matters. There's no standardized process for their reconsideration of the election. These three judges get to reconsider the efforts of hundreds of election officials. One can see why some scholars suggest judicial review causes more trouble than it's worth.

Well, the above picture is somewhat idealized. In fact, the agency consideration wasn't so pristine in this case. The "standardized" process involved things like sometimes accepting the election day count (when an envelope full of ballots was lost), and sometime not. Inexpert judges sat on the state canvassing board. So perhaps the agency process was not so different from the judicial review process.

But at least there was something like a dedicated agency process. The state elections expert -- the Secretary of State -- headed up the board.

I've previously stated my view that there's probably no way to really know who won this election. Every new level of tinkering with it decreases my confidence in the result. I adhere to my basic belief in the value of judicial review, but it's hard to see how much it can help here.

Holder's First Day

Eric Holder takes the oath of office today as Attorney General. Congratulations.

If I were him, here's the first thing I'd do: I'd send a memo to all 110,000 employees of the Department of Justice that said, "All hiring for career positions at the Deparment of Justice is to be done strictly on the basis of merit -- no politics. To those of you involved in hiring, this is a directive; to everyone else, it is a pledge."

The previous administration's politicization of career hiring at Justice was, for those of us who are former Justice employees, one of the saddest parts of the whole set of scandals surrounding the Department. It was wrong, it was shameful, and it was unnecessary. The career staff takes direction from the Department's political leaders. Hire good people and they'll get the job done, regardless of party. The new administration should make a clear and public statement that career hiring is to be done on the basis of merit.

Sign of the Times

Sure, I expected some of the Super Bowl ads to reference our tough economic times -- like the Budweiser ad centered around a company seeking cost-cutting measures -- but should an ad really pitch the down economy as a selling point?

Hyundai's "Assurance" ad says that if you buy a Hyundai and lose your income, you can return it with no impact on your credit rating. The fine print on the compnay website says that if you buy a Hyundai, and you make at least two of your car payments, and you're current on your payments, and you then lose your income because of involuntary unemployment or other covered causes, and it happens within a year, then you can give back the car and Hyundai will forgive up to $7,500 in negative equity on it.

Well, that's really getting me out to the dealer. I suppose it's better than nothing, but it's hardly a happy sales pitch to know that if I get fired I can walk away from all the money I poured into buying the car and keeping my payments current until I turned it in. And you also have to pay any "Additional Balance Amounts," whatever those are (the website doesn't say). Things must be getting bad if the company really thinks this is going to sell cars.