Month: January 2007

According to Business Week, health insurers and employers increasingly store patient and employee medical records in computer databases. Companies such as Intel, Walmart, and UPS offer financial incentives to employees who are willing to digitize their health records. Such a move certainly cuts costs associated with processing employee claims and benefits. But, at the same time, databases of health records expose individuals to the threat of medical identity theft. Incidents of imposters using victims’ health insurance for expensive surgeries are on the rise. Such fraud leaves victims with bills and medical histories that could jeopardize their future ability to obtain life insurance or disability insurance.

Despite the record number of data leaks and escalating threats to information security, Congress is considering legislation that would require hospitals to computerize medical records. Dr. Deborah Peel, founder of the Patient Privacy Rights Foundation, warns that medical identity theft will “grow the more we move toward an electronic health-care system. It’s going to be a disaster.” Congress must carefully consider the hazards of mandatory e-medical records. And, as Daniel Solove warns, any federal legislation should not preempt privacy-protecting measures at the state level.

Posted by Danielle Citron on January 16, 2007 at 12:02 AM

Just wanted to say “thank you” to all the folks here at prawfs for having me on this extended guest stay. This semester will be filled with prep for two new classes, finishing an article in the next month, an essay, and work on two books (sleep? obviously a luxury!).

Before I go, I wanted to ask a final legal scholarship-type question. We all know that some law reviews impose word limitations, and thus one should therefore try to confine one’s verbosity down to 70 pages or so. But is there any sort of minimum length? I ask because I am currently working on an essay – developing a hypothetical into a “thought piece” that I’m planning to present at the Second Annual Contracts conference. To those of you who have had success in placing essays, how long have they been?

Again, thanks everyone! Ya’ll stay in touch!

Posted by Miriam Cherry on January 15, 2007 at 06:10 PM

Comments

Miriam, thanks so much for the many great posts. Good luck with all your projects this semester.

Posted by: Dan Markel | Jan 16, 2007 6:50:22 PM

The one piece of advice I can offer is to RTFG (read the fantastic guidelines). Many journals particularly flagships print guidelines in every issue (usually in the copyright notice on the back of the issue’s title page). I was amazed at the number of case comments and book reviews submitted to the journal at which I was Articles Editor when those guidelines explicitly said “The [flagship journal] does not consider unsolicited case comments or book reviews.” That’s sort of like submitting an oversized brief without a certificate of length and motion to file an oversized brief.

Although this is a decade out of date, at [flagship journal] the Articles Editors imposed a minimum limit for unsolicited Articles equal to the minimum length required of Notes. And, since that journal’s policy was not to print case comments or book reviews, that imposed a de facto limit; all of our solicited articles were for either a special anniversary issue or, in the one case that we really had control over, a courtesy response for an author (the details are inappropriate here) that came close to that minimum anyway. I’ve been told that the next two boards followed the same policy, but know nothing since that time.

The minimum in question was 30 manuscript pages exclusive of notes (about 5000 words). This was imposed on Notes by the school so that they would meet the writing requirement for graduation. That whole concept seems to me to be rather ill-advised, since most of the time in practice we’re struggling with keeping our work below a maximum, not meeting a minimum. I suspect that it’s as much a response to the “doctoral degrees require dissertations” meme as anything else. It certainly did not encourage deep analysis, since many (and perhaps most) students chose to take a big topic and cover only one aspect of it to meet that requirement.

Aside: If you’re submitting a seminar paper (or other course/graduation requirement work) to a journal at another school, don’t put that information in your cover letter! Not only is it irrelevant, but it gives your paper however objectively good it may be the patina of “I couldn’t get this printed as a Note at my own school, so it’s probably not worth an Articles Editor’s time to read.” Who said that law doesn’t rely on appearances as much as substance?

Posted by: C.E. Petit | Jan 16, 2007 11:28:10 AM

As a not-to-far-removed former (recovering?) Editor in Chief of a flagship law review, there is no such thing in my mind as a “minimum length.” (Of course, I never really subscribed to the theory that there’s a “maximum length” either.) What’s important is that your article, essay, review, abstract painting, or whatever format conveys what it needs to get across. If it takes 70 pages, more power to you, but if it only takes 10 pages, then that’s fine too. There is actually a benefit to shorter pieces for law reviews (assuming the quality is adequate) in that it allows the journal to do more with the same space, in terms of manpower and financial restraints.

The obstacle you’ll face with a shorter piece (especially if it is significantly shorter than most other articles or essays), is perhaps the built-in bias of the reviewer for longer pieces. Not to generalize too much, but most people–not just article editors–tend to equate quantity with quality, or at least quantity with thoroughness. You could probably get rid of that problem by addressing the unusual brevity of your essay in the cover letter.

Posted by: ng | Jan 15, 2007 6:55:00 PM

My favorite law-related quote of the day is from this New York Times story about Wendy McCaw, owner and co-publisher of the Santa Barbara News-Press, whose war with current and former staffers of the paper has led her to file a number of legal actions against former reporters, local supporters of the departed staff, and journalists who have written about the brouhaha, and to send out a string of cease-and-desist letters. Here’s the money quote:

When asked why Mrs. McCaw has consistently chosen legal action when she has felt wronged, rather than engaging in dialogue with readers or her news staff, [David Millstein, the paper’s general counsel] said, “A cease-and-desist letter is a form of dialogue.”

[The title of the post is, of course, from the incomparable Ring Lardner.]

Posted by Paul Horwitz on January 15, 2007 at 09:56 AM

Comments

Thanks for posting about this Paul.

McCaw, a putative liberal, has been anything but in her handling of the News-Press (long termed the ‘News-Suppressed’ among Left-liberals in town, an appellation that more than ever has hit the mark). For some spot-on commentary about this war, see the blog by Craig Smith, currently (among other things) an adjunct professor of law at Santa Barbara College of Law (you can click on his bio at the blog; he’s recently published a book on California contract law): http://www.west.net/~smith/blog/index.shtml

Posted by: Patrick S. O’Donnell | Jan 15, 2007 10:22:27 AM

According to the New York Times, 2006 ended with an infamous information security milestone. Last month, computer hackers obtained the Social Security numbers and other sensitive personal information of 800,000 U.C.L.A. employees and students. Aetna lost 130,000 employee computer records, and a thief stole a Boeing employee’s laptop containing the SSNs of over 382,000 former and current employees. One of the folks affected by those security breaches has the dubious distinction of standing as the 100 millionth person to lose their personal data in a security breach in the past 18 months. Unfortunately, experts predict that the state of information security will further degenerate this year, exposing even greater numbers of individuals to the threat of identity fraud.

As has been widely reported, individuals with pressed financial resources have great difficulty repairing their credit history after being struck by identity theft. The money lost and time spent trying to correct damaged credit histories ultimately could have a material adverse impact on the U.S. gross domestic product. At a more granular level, data leaks, and the identity theft they risk, pose other less publicized problems that will affect the legal community. State bars require law graduates to present their credit history as part of their character and fitness review. Students whose credit has been decimated by an identity thief now face additional hurdles beyond passing the bar to practice law–proving that a thief’s loans and unpaid mortgage bills are not their own. It appears that the information security problem will make nabbing a license to practice law even harder in 2007.

Posted by Danielle Citron on January 15, 2007 at 12:01 AM

Comments

Since stolen laptops are often the source of lost personal information, applying thin-client or server-based computing capabilities to laptops would be a real boon to security. The laptop becomes a dumb monitor. Steal it and all you’ve got is a typewriter with lights. No hard drive. No memory. No data to be disclosed.

Posted by: Kevin Linskey | Jan 23, 2007 5:26:55 PM

Bruce — SSNs are very easy for fraudsters to find out. User-generated passwords work much better. They are used for online accounts, but strangely not for other purposes. As for setting up new accounts, there’s always the possibility of fraud, but with many accounts, there are often better alternatives — if the account is created in person, identification could be required. The problem with using SSNs or dates of birth is that any fraudster can get them readily — anybody can simply purchase another’s SSN! Also, some simple techniques, such as checking the data on an application against a person’s credit report can reduce fraud in new applications. Or, if there’s a discrepancy in addresses or phone numbers between what’s on the credit report and the account, sending a notice to both so as to prevent fraud might be helpful. But relying on knowledge of SSNs to verify identity strikes me as irresponsible.

Posted by: Daniel Solove | Jan 16, 2007 5:28:41 PM

“There is absolutely no reason why banks, financial institutions, and other companies that do business with people should use SSNs to verify identity. The practice is irresponsible. Merely shifting to a password, which isn’t perfect by any means, will be a significant improvement.”

I think we need to distinguish here between new relationships and existing relationships. I don’t understand how getting rid of SSNs at the new relationship stage will improve security. In fact, of all the information the bank or whoever has on you to verify your identity, that one’s probably the *most* secret. I mean, SSNs are not *that* widely known. I certainly don’t know many people’s SSNs.

Obviously user-generated passwords and randomly assigned account numbers and the like are better for access to existing accounts, which is why just about everyone uses that system, at least for online transactions. (Perhaps telephone access is an exception, but I’m less familiar with both the security practices and the magnitude of the threat there.) But I’m not understanding what the alternative would be for new accounts — setting up a password will accomplish nothing if the person setting up the password is already a fraudster. You’ll just have very secure, but fraudulent, transactions. If there aren’t good alternatives, using SSNs (plus other biographical data) does not strike me as such a bad practice. Perhaps where the law can help is in making sure that companies cannot externalize the risks of such practices.

Posted by: Bruce Boyden | Jan 16, 2007 12:55:23 PM

Bruce — Yes, you need previous coordination between the parties to set up an account with non-SSN or public record info (such as date of birth or mother’s maiden names) as the way to verify identity. The reason why getting rid of SSNs will be an immediate benefit is that when they are used like passwords, they have several features that make them the worst kind of password: (1) they are widely known, so anybody, without any technical sophistication, can learn your “password” — SSNs are akin to using your user name as your password; (2) they are hard to change; at least with a regular password, you can change it quickly; and (3) they are used broadly in many different contexts. So you have a hard-to-change “password” for tons of different accountd that anybody can find out even without any degree of technical expertise.

There is absolutely no reason why banks, financial institutions, and other companies that do business with people should use SSNs to verify identity. The practice is irresponsible. Merely shifting to a password, which isn’t perfect by any means, will be a significant improvement. There are many companies, however, that will not be happy with getting rid of SSNs or some other form of public data (such as dates of birth, which also should not be used for the reasons stated above) to verify identity. Credit card applications, for example, don’t have a preexisting relationship with the consumer. Or credit reporting agencies, which report on you without a preexisting relationship. The structure of the credit reporting system strikes me as an immensely odd one — we depend upon accurate credit reporting yet such an important process takes place entirely behind our backs.

To Danielle’s point, yes, getting something through Congress on SSNs will be difficult, as is getting nearly anything through Congress. I’ve been quite involved in Congress’s wranglings over the data security breach legislation (I testified before Congress in 2005 and spoke to many staffers). But seeing the process unfold has really made me lose a lot of faith in Congress. So much so that I think it’s better left to the states at this point. The states have been quite responsive to the security breaches, and countless states have already passed new laws. True, state-by-state legislation is less efficient, but Congress does not seem capable of late to reach a fair balance between consumer interests and special interests. Ironically, it is industry pushing the hardest for Congressional legislation in order to preempt the state laws with a vague and weak data breach standard. There are some people in Congress who really do care about writing a good balanced thoughtful law, but thus far, there don’t seem to be enough.

It has been my theory for some time that the FTC could assert that the use of SSNs is an unreasonable security practice in violation of the requirements of the Gramm-Leach-Bliley Act. But it hasn’t done so.

So I’ve become quite cynical about Congress and about any federal solution. The most exciting privacy developments these days are coming out of the states. It has really changed my views on federalism in a significant way.

Posted by: Daniel J. Solove | Jan 15, 2007 7:33:10 PM

Ah, I get it now. I think the problem with any solution to the use of SSNs as identity authentication is that most alternatives are either not very secret either, not applicable to a substantial portion of people, not easy to remember, not easy to convey, or some combination of all that. You could ask multiple rotating questions, but this taxes both the abilities of the system (I’ve had CSRs using this sort of method get my past addresses wrong) and the memories of consumers (let’s see, what county was I in 15 years ago?). Made-up passwords place a similar burden on consumers — I use a small number of passwords for a large number of sites, and rarely change them, despite all the warnings, because I have better things to do with my time — and I feel pretty confident my security practices are better than most. You could use some sort of security key to authenticate identity, but that’s an extra thing (or 20, if every institution has a different one) to carry around, and may not work over the phone depending on how it’s implemented. So, SSNs may not be foolproof, but what’s the (efficient) alternative?

One line I think you could draw is between the procedures to access an account, and to establish a new one. Accessing an account easily, with a minimum of hassle, is a big plus for consumers — and in most cases, fraudulent access of the account results in a finite amount of harm (e.g., your card is cancelled unexpectedly and you have to pay $50). Much, much worse is having someone who can set up new accounts in your name. So if I had to go through 5 minutes of rigamarole every time I set up a new account, that wouldn’t be so bad, since I don’t do that that often. But I still think you’re going to face a problem of where to get the authenticating information from, in a way that’s both accurate and secure, without previous coordination between the two parties.

Posted by: Bruce Boyden | Jan 15, 2007 3:32:43 PM

I am looking forward to Dan’s response to Bruce’s question, but in the interim I thought I would chime into the discussion. Pension plans, banks, credit card companies, and other entities in the financial sector use SSNs to verify customers and plan participants. Private employers often require employees to use their SSNs as work IDs. And businesses use SSNs to verify clients and customers. (Not surprisingly, employees are currently pursuing negligence lawsuits against employers that used their SSNs as IDs and subsequently lost them in a security breach.)

Many thanks to Dan for his insight that SSNs should not be used to verify clients, customers, and employees. A legislative prohibition of the use of SSNs in certain circumstances would no doubt stem part of the leakage problem. A legislative solution in that order, however, seems unlikely given significant support by the financial services industry, pension planners, and others for the use of SSNs as a means to identify and verify individuals. But perhaps the new Congress might be more receptive to Dan’s persuasive arguments for a legislative/administrative approach to the pervasive use of digital dossiers and SSNs in the private sector.

Posted by: Danielle Citron | Jan 15, 2007 1:42:23 PM

By passwords, I’m using the term broadly to mean any way of verifying or authenticating identity. Many financial institutions and other companies ask callers or credit card applicants their SSN in order to verify that they are who they say they are. This is a use akin to a password, a word that provides access to accounts. Say the word (or SSN) and you’re given access.

People are not voluntarily using their SSNs as passwords; SSNs are used by countless institutions in order to determine if a caller is indeed the account holder. They are also used, in conjunction with dates of birth, as a way of verifying identity to open up a new credit card account, etc. There is little difference between this use and use as a password, which is why I equate the two. But to be more accurate, SSNs should never be used as a way to authenticate identity — knowledge of SSN should have no bearing on whether a person is who they say they are.

Posted by: Daniel J. Solove | Jan 15, 2007 1:28:06 PM

Dan, who’s using SSNs as passwords? I’ve seen it used as a user ID, mostly at financial services companies, but never as a password. Do you mean people are voluntarily using their own SSNs as passwords? That would certainly seem to be a bad idea.

Posted by: Bruce Boyden | Jan 15, 2007 12:20:10 PM

Good post. All these data leaks have turned the focus of legislatures on the data leakers, but there’s another set of culprits in all this that are perhaps more to blame and are not getting any attention — those that use SSNs as passwords to access accounts. It is my belief that most ID theft could be curtailed by banning the use of SSNs as passwords. This doesn’t mean banning all uses of SSNs. SSNs can be used to distinguish between people with the same name (they function well as an addendum to people’s names); but they are a lousy way of verifying that people are who they say they are. Using SSNs as passwords is one of the dumbest practices ever devised. Stop the use of SSNs as passwords, and leaking SSNs becomes relatively harmless. This shouldn’t let the data leakers off the hook, but it would go a long way toward addressing the problem.

Posted by: Daniel J. Solove | Jan 15, 2007 12:49:27 AM

As a Prawfs devotee, I am grateful to Dan and the gang for the chance to join the Prawfsblawg chorus. I teach at the University of Maryland School of Law, and my writing focuses on the challenges law and society face in our networked information economy. In my two-week stint in the blogosphere, I hope to address some of those challenges and blog a bit about the AALS.

Posted by Danielle Citron on January 14, 2007 at 10:38 PM

Comments

Welcome on board Danielle ! great meeting at AALS, DC and I look forward to some information and the law posts…

Posted by: Orly Lobel | Jan 14, 2007 11:38:53 PM

[Ed.: While we’re sorting out some technical difficulties, Bill Patry put this initial post together.]

Given the size of the [new copyright] treatise (7 volumes of text, about 5,800 pages), people have asked me how I did it, but they might also be wondering why. I have asked myself that question countless times, usually in the midst of one of the hundreds of exasperating technical or clerical snafus that made up the bulk of the time preparing the book. I estimate that for every hour I spent on research or writing, three more were spent on mindless tasks. Since I did 100% of the research and writing, never using assistants of any stripe, and since I personally tackled all of the aforesaid mindless tasks too, we are talking about a lot of time. What began as a thorough revamping of an earlier work stretched out to seven years; when one includes time spent on earlier works adapted in this text, another seven years can be added on. So, why spend so much time? One answer is I didn’t think I was going to. The most direct answer, though, is to educate myself. Writing for others requires a discipline I found to be the best way for me to understand issues. I could, of course, have written the book and then not published it, but had I known in advance I wouldn’t be publishing it, there would be little incentive to be as careful.

What was interesting for me, and what I hope will be interesting to others, is placing copyright issues in the personal, social, and political contexts in which they arose. In my eight years experience in the legislative branch of government, I gained some insight into how problems are identified, debated and ultimately resolved or not at the policy level. In 13 years of private practice, I gained some insight into the forces that lead to litigation, what it is like to present cases for decision especially the practical economic considerations, as well as the consequences of victory or loss in the courtroom. In five years as a full-time academic, I gained some insight into how one goes about thinking and writing about copyright as a system of law. I have tried to meld all these experiences together in this book.

Everyone’s experiences and interests are different. My interest is learning what I can everyday from whoever and wherever I can. I let the rest take care of itself.

Posted by Administrators on January 13, 2007 at 08:35 PM

Comments

Orly:

I too share a dislike of “sharing” with or without quotation marks. On moving from the academy to private practice, I have a number of thoughts. The first is that because of my diverse background, people have hard a hard time categorizing me. This has caused me endless tsouris: When in private practice (which book-ended my time in government service and academy), most private practitioners viewed me as “academic” in the sense of writing too much to be a real lawyer. Yet, when I went to the academy, not a lot of academicians regarded me as a real academic because of my extensive time in private practice and government service and because my writing was at that time (less so now) fairly doctrinal rather being than “Law &.” The best part of leaving the academy was the money. The worst part about being in private practice was hustling business and billable hours.

Being at inhouse at Google melds the best of both worlds: there are an awful lot of really smart people who care about policy issues, and the company is obviously on the cutting edge of many legal and commercial issues.

The monetary incentives for the treatise were definitely a part of the equation, but not the motivating factor even though I wouldn’t have written it if I didn’t think ultimately I would make some money.

Posted by: William Patry | Jan 14, 2007 1:41:43 PM

Well Bill, this really interesting. Since you are “sharing” (i find that term very American, so forgive my quotation marks), would you mind elaborating on a few related experiences: a) what is it like to leave the academy and move back to practice? most people move the other direction. What do you miss most? What do you miss least? b) were the monetary incentives in writing a treatise part of the equation?

Posted by: Orly Lobel | Jan 13, 2007 10:55:23 PM

I am preparing for my first consumer law / commercial law class next week and one of the first cases keeps cracking me up. It is one of the cases where a guy comes to a small town, buys a house, and finds out the house is haunted; in fact, the house had been haunted for years, as the seller enjoyed bragging about to the neighbors. Yet the seller failed to mention the fact to the buyer and the court holds that the buyer is entitled to the equitable remedy of rescission. What makes me laugh is obvious delight the court is experiencing with a case about ghosts before it.

Here is a taste of the court’s analysis of the problem of paranormal discovery:

“While I agree with Supreme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn’t a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his downpayment. New York law fails to recognize any remedy for damages incurred as a result of the seller’s mere silence, applying instead the strict rule of caveat emptor. Therefore, the theoretical basis for granting relief, even under the extraordinary facts of this case, is elusive if not ephemeral.

“Pity me not but lend thy serious hearing to what I shall unfold” (William Shakespeare, Hamlet, Act I, Scene V [Ghost] ).

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: “Who you gonna’ call?” as the title song to the movie “Ghostbusters” asks. Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale. It portends that the prudent attorney will establish an escrow account lest the subject of the transaction come back to haunt him and his client‑‑or pray that his malpractice insurance coverage extends to supernatural disasters. In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.”

The case is STAMBOVSKY v. ACKLEY New York Supreme Court, Appellate Division, 991, 572 N.Y.S.2d 672 and can be found in forthcoming Third Edition of Consumer Law Cases and Materials, by John A. Spanogle, Ralph J. Rohner, Dee Pridgen, and Jeff Sovern, Thomson/West 2007.

Posted by Orly Lobel on January 12, 2007 at 03:28 PM

Comments

We just had this case in Property. Similarly humorous, but not quite as outrageous, is Easterbrook’s opinion in UNITED STATES V. JACKSON.

He notes that Jackson was set free on a “work release program” and after his release he got right to work, robbing the same bank he had on 3 (4 according to Posner’s concurring opinion) prioro ocassions.

Posted by: S806 | Jan 14, 2007 12:33:56 AM

Thanks Patrick for pointing out eric’s post — he has a link to a picture of the actual house – i think i might use it on power point…

Posted by: Orly Lobel | Jan 12, 2007 10:16:00 PM

STAMBOVSKY v. ACKLEY was also mentioned in a post by Eric Goldman at Concurring Opinions on the 11th, and earlier discussed by him at the ContractsProf Blog (Nov. 14, 2005): http://lawprofessors.typepad.com/contractsprof_blog/2005/11/stambovsky_v_ac.html He provides some great links there as well.

Posted by: Patrick S. O’Donnell | Jan 12, 2007 7:49:53 PM

I studied this case in my contracts class and was struck by the court’s holding that “as a matter of law, the house is haunted.” The court additionally stated that “it cannot be said that [defendant] has delivered the premises ‘vacant’ in accordance with her obligation under the provisions of the contract rider…”

Perhaps the funniest case all first year. The text is Crandall and Whaley’s.

Posted by: Jim Green | Jan 12, 2007 6:45:08 PM

At the Volokh Conspiracy, Jonathan Adler notes a Washington Post editorial discussing an interview given by Deputy Assistant Secretary of State Cully Stimson. According to the report, Stimson pointed to a recent FOIA request seeking the names of law firms representing detainees in Guantanamo, adding, “You know what, it’s shocking . . . . I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms . . . .” Not content to rest there, Stimson suggested that while some firms would “maintain” that they were taking these cases “out of the goodness of their heart,” “others are receiving monies from who knows where, and I’d be curious to have them explain that.”

Adler expresses the hope that Stimson was “shooting from the hip, rather than expressing official policy.” So do I — although I would note a piece of the story Adler misses: that the Wall Street Journal ran a column today by a member of its editorial board, in which “a senior U.S. official I spoke to” toes a similar line. The writer, in his words, says the official “speculates that this information [about white-shoe firms representing detainees] might cause something of [a] scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500.” (emphasis added) Of course, the nameless official might be Stimson yet again. Still, let us hope, again, that this is not someone’s idea of a government talking point, or a device to rally hardcore supporters.

I admit to flirting with the view that big firms should either cease doing pro bono work, while effectively paying others to do it for them, or at least limit themselves to pro bono work closer to their areas of specialization. And I certainly think there are reasons of self-interest, having to do with training, associate hiring and retention, and the need to ease cognitive dissonance, that are involved in firms taking on pro bono work of particular kinds; those reasons have nothing to do with the dark motives Stimson suggests, but are not exactly about “the goodness of their heart[s]” either. But I can only share Adler’s view that Stimson’s attack is just plain wrong. As Adler says: “All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to legal process, and it is wrong to impugn attorneys on the basis of the clients they represent.”

Adler notes one irony in Stimson’s insinuating attack on those firms representing the detainees: that this administration has defended its judicial nominees from similar attacks by arguing that an attorney should not be judged by the position of his clients. I would add a second, targeted particularly at views like that of the WSJ editorialist above, who glibly describes these firms as working to “tilt the playing field in favor of al Qaeda.” That suggests that providing counsel within the legal process to a person accused of acts of terrorism is nothing more than a collaboration with wrongdoing. Presumably, then, when a lawyer or law firm represents a “reputable firm” that is similarly accused of wrongdoing, it is again nothing more than an agent of wrongdoing, never mind that the process has not yet reached any final conclusion about the wrongness of the underlying conduct. Yet I doubt the editorialist, or the Wall Street Journal, would take a similar position with respect to law firms representing white-collar defendants. Indeed, that paper has been vociferous in attacking government tactics, like the Thompson Memorandum, aimed at undermining the provision of legal defenses for individuals and firms accused in white-collar cases. Of course, the alleged conduct at issue with respect to the Guantanamo detainees is much graver than that at issue in the white-collar cases. But so, too, the hurdles to the provision of legal process are far graver in the detainee cases, and papers like the Journal have been outraged by even the far more limited obstructions of legal process involved in the white-collar cases.

No, the principle remains the same either way. One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not. I would have thought that Mr. Cully, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.

Posted by Paul Horwitz on January 12, 2007 at 12:46 PM

» Administration Limbo from The Debate Link How low can they go? The bureaucrat in charge of Guantanamo Bay policy tries to start some dark rumors about the law firms assisting in defending the detainees there. He suggests that companies might want to boycott the law firms, and worse, impli… [Read More]

Tracked on Jan 12, 2007 6:14:53 PM

» Dept. of State declares war on BIGLAW from Appellate Law A lawyer at the Department of state has declared that the clients of large law firms should take their business elsewhere (like where?) if they represent Gitmo detainees. (Tnx PrawfsBlawg) He also seems to indicate that large lawfirms are somehow [Read More]

Tracked on Jan 12, 2007 9:25:02 PM

» Defend Detainees, Suffer Consequences? from The Volokh Conspiracy As reported in this Washington Post editorial (LvHB), a high-r… [Read More]

Tracked on Jan 12, 2007 10:01:13 PM

» Discouraging Detainee Defense: from The Volokh Conspiracy Paul Horwitz notes that the issue of which law firms are defending detainees also made it into a Wall Street Journal [Read More]

Tracked on Jan 13, 2007 10:08:08 PM

Comments

You mean Mr. Stimson, not Mr. Cully, in the last paragraph.

Posted by: Bart Motes | Jan 15, 2007 6:43:27 PM

In a comment to a post on my blog, I suggested that the administration would start condemning the large law firms that represent Gitmo detainees. Well, Prawfsblog notes that they are starting to do just that. Or at least Deputy Assistant Secretary of State Cully Stimson is doing this.

Stimson, is, of course a lawyer.

http://www.govexec.com/features/0506-15/0506-15na5.htm

He graduated from Kenyon College, and GMU. I am sure that the deans of both schools support his views that it is wrong for large law firms to represent unpopular defendants. (If not, I am sure that they will distance themselves.)

Of course, the administration’s position is silly. Everyone is entitled to legal representation. Moreover, everyone knows that comments impugning the integrity of large law firms that represent unpopular defendants are not aimed at the firm’s clients, but rather at unsophisticated people outside the beltway who really don’t have much to do with how this country is run, anyway.

Posted by: S.cotus | Jan 12, 2007 2:43:28 PM

Great post Paul!

Posted by: Dan Markel | Jan 12, 2007 1:26:33 PM

I’ve heard that some faculties have small reading groups for the semester or a year, and of course, I am curious about what structures work best. Should participants give tutorials about their own projects and areas of expertise within (say) legal theory, or should the group just select works of other people to read. If the latter, should the works be classics or contemporary, and if contemporary, published or works in progress? I think the purpose of the reading group is to accumulate knowledge for those who may need brush-ups. In that sense, I think they’re different than most faculty workshops for works in progress. Anyone have experience with this that she’d like to share in the comments? I think Illinois has had some of these in criminal law and policy, and I’m wondering if there are other guidelines elsewhere that you know about. Thanks.

Posted by Administrators on January 12, 2007 at 11:20 AM

Comments

The semester I was at Wake Forest your own PrawfsBlawg alum Ron Wright organized an enjoyable reading group in which we decided largely ad hoc on pieces to read and discuss, including Stephen Breyer’s book, and as I recall, a symposium piece in maybe the Maryland Law Review on law and economics. No work in progress stuff. That was the stuff of brown bags and lunch presentations.

Posted by: Jeff Lipshaw | Jan 12, 2007 9:27:53 PM

Mike Dorff at Southwestern started up a very enjoyable faculty reading group last year, in which I gladly participated. We have not gone the work-in-progress route, and I think such a direction is really different from a standard reading group, although it may be useful in and of itself as a separate enterprise. (And if you go that route, why limit yourselves to colleagues within the law school? Why not take advantage of the broader campus to invite colleagues from other schools to talk about developments in their field?)

In the SW group, we faced (and face) similar issues. I think there have been two conflicting currents in selecting readings: 1) readings in classic legal literature; and 2) recent cutting-edge pieces. I lean in the former direction, for reasons I’ve explored on this blog — the lack of serious entry requirements for new law professors and the absence of a clearly established canon means it’s possible to become a teacher and scholar without reading the classic texts, let alone discussing them in a group setting. The difficulty with the classics lies in selecting a reading that can stand on its own, and that is not so long that the group suffers from dropouts or collapses of its own weight. But, would that the legal academy were willing to admit it, such a brushup on the classics is probably necessary. Reading recent cutting-edge pieces is, of course, a great way of staying abreast of the literature. At SW we’ve tended to toggle between the two.

I’d also recommend a rotating facilitator for such reading groups meetings, who will take responsibility for nominating a short slate of potential readings, and then take charge of providing a list of questions (and perhaps even a summary of key points) prior to the meeting, to facilitate a useful discussion.

Posted by: Paul Horwitz | Jan 12, 2007 11:33:50 AM

From the Globe and Mail comes this interesting story highlighting a standard law and religion issue: the conflict between the law’s protection of the best interests of the child and the spiritual interests of some religionists — in this case, and most commonly, Jehovah’s Witnesses — for whom blood transfusions are unacceptable for religious reasons. In this case, the conflict is made more palpable, and poignant, by the circumstances: the story involves sextuplets, born prematurely at low birth weights. From the story:

VANCOUVER — While the parents of sextuplets born this week in B.C. Children’s Hospital are striving to keep a low profile, the health of their babies could propel them into a courtroom and a very public clash over medical responsibilities and religious rights.

The British Columbia ministry responsible for the welfare of children confirmed yesterday that it is prepared to make the babies wards of the state, if necessary, to ensure their safety.

The parents, who have remained anonymous despite massive media attention, are Jehovah’s Witnesses, members of a faith that forbids members to accept blood transfusions….

An official with the B.C. Ministry of Children and Family Development, speaking on a background basis, said the government is very much aware of the situation and is prepared to act, if necessary….

“If a health practitioner is aware of a case where a child, including a newborn, may be at risk as a result of a parent refusing to consent with a recommended treatment, the health practitioner has a legal duty to report that matter to a child-protection worker. And we would then assess and take appropriate steps to ensure the child’s safety,” the official said.

“In cases where treatment is deemed to be necessary to preserve a child’s life, or prevent serious or permanent impairment to a child’s health, it may be necessary to seek a court order – and that’s what we would do.”

Speaking from personal experience, I can certainly attest that transfusions are common in the treatment of premature children. A representative for the Jehovah’s Witnesses quoted in the story suggests that there are potential alternatives to blood transfusions. I can’t speak to the efficacy of those treatments.

The courts generally treat these cases as easy cases, and no doubt so would most folks. No doubt there is about as significant a compelling government interest here as you could ask for. My own view, nonetheless, is that courts should, to some degree and in some sense, treat cases like this as among the hardest. Just as the government’s interest is at its highest level, so the stakes are especially high for the religionists involved in the case. As Kent Greenawalt notes in volume 1 of his recently published treatise, the religionists may “believe that their souls and the souls of their children will be jeopardized if the children receive a transfusion. Someone might argue that the state should defer to the parents . . . . Certainly it is better to lose one’s life on this earth than to suffer eternal damnation, if that is the choice.” (emphasis in original)

Should the heavy weight of the prospect of damnation shift the balance dramatically enough to change the outcome? Ultimately, no, at least in cases involving infant children. In such circumstances, as Greenawalt writes, it should still be the case that the courts “properly require[ ] medical treatment that is essential for life, even against a parental claim that the treatment is harmful religiously.” But courts, in their rhetoric, might at least honor the significance and poignance of such religious claims, even in cases involving children, and even if the outcome still favors the state. Serious recognition of the weight of the religious claims involved in such cases, rather than an air of dismissiveness, might at least show respect for the religious objectors in such cases, and draw them more fully into the broader community and the legal and medical decision-making process, regardless of the outcome. Judges certainly should give due consideration to the availability of medical alternatives in such cases, at least where they are not pressed by the genuine urgency of the situation. And they ought to give far greater weight to such claims the more the individual involved reaches the capacity to claim the right to refuse medical treatment for him- or herself, even at a relatively young age. In this case, as I have already suggested, given the age of the children, I certainly believe the outcome must favor the state’s interest in medical treatment, even against the parents’ wishes, unless genuinely credible medical alternatives exist. But the court facing such a situation might at least treat the religious claims involved with the weight and dignity they deserve, even as it rules for the state.

I will be curious to see what my law & religion students this semester think of such a situation. I don’t doubt they’ll teach me as much as I teach them.

Posted by Paul Horwitz on January 12, 2007 at 11:19 AM

Comments

The following website summarizes over 200 similar court cases involving Jehovah’s Witness Parents who refused life-saving blood transfusions for their children: DIVORCE, BLOOD TRANSFUSIONS, AND OTHER LEGAL ISSUES AFFECTING CHILDREN OF JEHOVAH’S WITNESSES http://jwdivorces.bravehost.com/

Posted by: Jerry | Mar 29, 2007 12:37:09 PM

To back up my immediately preceding statement about misrepresentation:

http://ajwrb.org/whatsnew/church_state.shtml

This cutting edge legal essay critically examines one of the religion’s main publications dedicated to the blood doctrine, How Can Blood Save Your Life?. How Can Blood Save Your Life? dedicates pages to the thoughts of secular writers on the benefits of abstaining from blood. As late as December 2005, the Watchtower Society’s Kingdom Ministry recommended that its followers use How Can Blood Save Your Life to teach their children about the blood doctrine in order that their children will be able to articulate their stance in court. The essay details the misrepresentations in How Can Blood Save Your Life, by analyzing the following quotes against the original author’s (or court’s) words to determine if they are taken out of context to the point of creating a dishonest secular argument that bolsters the Watchtower Society’s religious belief. Writers: · Joseph Priestley, The Theological and Miscellaneous Works of Joseph Priestley, vol. 2, · Eusebius of Ceasarea, The Ecclesiastical History, Book V · Tertullian’s The Apology of Tertullian—Chapter IX” (Merton College, Oxford for Parker & Co 1890); · Paul J. Voogt et. al., “Perioperative Blood Transfusion and Cancer Prognosis,” Cancer · John S. Spratt, MD, “Blood Transfusions and Surgery for Cancer,” The American Journal of Surgery · Tarter, “Blood transfusion and infectious complication following colorectal cancer surgery,” 790 · Lawrence Altman, MD, “Lyme Disease from a Transfusion? It’s Unlikely, but Experts are Wary,” New York Times, · Lawrence Altman, M.D., “Scientist Fear that a Paras! ite Will Spread in Transfusion” New York Times · Lawrence Altman, MD., “Quandary for Patients: Have Surgery, or Await Test for Hepatitis C?” New York Times, · Bruce Lambert, “4 Cases Found of Rare Strain of AIDS Virus—Standard Test Fail to Detect the HIV-2,” New York Times · Jerry Kolins, MD and Leo J. McCarthy, MD, Contemporary Transfusion Practice (American Association of Blood Banks 1987) · Kolins, MD and McCarthy, MD, Contemporary Transfusion Practice · P.J. Howell and P.A. Bamber, “Severe acute anaemia in a Jehovah Witness,” Anaesthesia · James A. Stockman III, MD., “Anemia of Prematurity Current Concepts in the Issue of When to Transfuse,” Pediatric Clinics of North America · Dixon B. Kaufman, “A Single-Center Experience of Renal Transplantation in Thirteen Jehovah Witnesses,” Transplantation Court Cases · Parham v. J.R., 442 U.S. 584 (1979) (US Supreme Court). · In re Hofbauer, 47 N.Y. 2d 648 at 655 (NY Ct. of Appeal 1979) (New York’s Highest Court) The essay, “Jehovah’s Witnesses, Blood Transfusions, and the Tort of Misrepresentation” does not stop here, but furthers by critically analyzing the Watchtower Society’s current blood policy misrepresentations surrounding the scope of allowed blood products, including hemoglobin and Factor VIII, and autologous blood transfusions, an issue that http://www.ajwrb.org has repeatedly shown. The essay’s author, Attorney Kerry Louderback-Wood, wrote this essay after the loss of her elderly mother due, in part, to the Watchtower Society’s blood doctrine. She dedicates the essay to all the children who were harmed by the Watchtower Society’s blood policy! She wrote this essay in the hopes of saving one life. Like the first tobacco cases and Catholic church sex scandal cases, Kerry Louderback-Wood does not expect the first Jehovah’s Witness blood case to easily win. But, this essay is meant to look at where the law could go, if the State were to hold the Watchtower Society’s “freedom to misquote secular material” over the very lives of its citizens.

Posted by: J Mason Emerson | Jan 19, 2007 9:36:28 AM

Going back decades now, after initially prohibiting Jehovah’s Witnesses from receiving organ transplants, the Watchtower Bible and Tract Society over JWs wrote it would be okay for JWs to get such transplants, adding that otherwise the organization could become mired in costly litigation.

So Jehovah’s Witnesses get organ transplants full of blood. Yet members are put under the gun or duress of shunning when they get emergency blood transfusions for themselves or the children. This is hypocrisy and the end result for too many is death.

Watchtower heads have misrepresented to members that not getting standard medical care in such situations is safer than getting such care, laying the organization open to potentially costly lawsuits. The power behind the throne for the current Watchtower Society’s Governing Body is frequently said to be Theodore (Ted) Jaracz.

Jaracz and his cohorts not only err in this matter but also in their policy of continuing to insist that local JW Elders must keep sending so-called “repentant” child molesters, serials rapists and murderers etc along with other unsuspecting JWs. This is an endangerment to those other JWs, their children, the public and the children of the public at whose doors such “repentant” ones knock.

By the way, who’s knocking at your own doors?

Posted by: J. Mason Emerson | Jan 19, 2007 8:30:38 AM

DEADLY DOGMA

The utter hypocrisy of the Watchtower/Jehovah’s Witnesses prohibition against blood is that they can now take ALL the *parts* of blood so called ‘blood fractions’ the components that blood is composed of.

So what’s the difference? Either blood is sacred or it isn’t.How can ALL (whole blood) be sacred to God but not PARTS (fractions) of it arbitrarily set aside by Watchtower standards?

Such utter hyprocrisy! Some dissident JW educational links: http://www.ajwrb.org/ Jehovah’s Witnesses blood policy reform site

http://www.towertotruth.net… “Will you die for a lie?”

The Jehovah’s Witnesses apologist keep posting that,”it’s God’s command to abstain from blood”NO it is not! It is the command of your Watchtower leaders who’s last utterance is that it’s now okay to take all the ‘parts’ of blood but not whole blood.The entire doctrine is senseless and deadly

Posted by: Danny Haszard | Jan 16, 2007 4:11:21 AM

Just wanted to thank all of our guests this past month or so. In the next few days we’ll also be rotating in a few new voices: Danielle Citron, who teaches at U. Maryland and is the author of two very interesting recent articles, and Bill Patry, a former prawf at Cardozo who’s now at Google as copyright counsel. Bill has just released a treatise on copyright and will be sharing with us some of his thoughts on the art and allure of treatise writing.

Posted by Administrators on January 12, 2007 at 10:55 AM

Orly’s post made me realize how woefully behind I am in thinking about the Berlin conference for Law and Society. If there are any crimprawfs out there who want to present on a panel about issues related to punishment theory and institutional design, please contact me asap with the topic and thesis on which you want to present. I’m hoping to put a paper panel together, preferably for the first day or two of the conference if possible (July 25 or 26). Thanks!

Posted by Administrators on January 12, 2007 at 01:02 AM

Comments

well dan, john braithwaite is chairing the panel on regulation i am presenting on, but he would certainly be good to approach on anything related to punishment.

Posted by: Orly Lobel | Jan 12, 2007 2:22:06 AM