Discourse.net

Happy Thanksgiving

Blogging will resume Monday.

Senior UK Judge Attacks US For Guantanamo Detentions Without Trial

‘Monstrous US justice’ attacked by law lord. Very, very strong words about the Guantanamo detentions from a normally reserved senior English judge: “By denying the prisoners the right to raise challenges in a court about their alleged status and treatment, the United States government is in breach of the minimum standards of customary international law.”

Lord Steyn also called the proposed military commissions “a stain on United States justice” and predicted that they would be regarded as “kangaroo courts,” which he defined as an “irregular tribunal which makes a mockery of justice.”

One of Britain’s most senior judges condemned the American courts last night for a “monstrous failure of justice” by refusing to rule on the claims of Taliban suspects held without trial at Guantanamo Bay in Cuba.

Lord Steyn, a serving law lord, said the United States was acting illegally by holding the men without trial since their transfer from Afghanistan early last year.

…

Lord Steyn, 71, the third most senior law lord, said that under English law the writ of habeas corpus would protect citizens and foreigners. That was consistent with human rights law, which Lord Steyn concluded, the US had broken.

Grave Threat to National Security Apprehended

Atrios reports that they have caught the Republican hacker who’d been purlioning Democratic memos at the Senate Intel committee. Recall that according to no less an august figure than the Chair of the committee, the publication of one such purloined memo compromised the war on terror.

Supreme Court of Florida Appoints Committee on Privacy and Court Records

The Supreme Court of Florida has appointed me along with a bevy of state law luminaries to its Committee on Privacy and Court Records. You can read the Administrative Order (.pdf) and the Press Release. There is also a useful webpage with background information.

The tension between online public access to court documents and privacy raises really hard questions for which I have no ready answers. As an abstract matter it isn’t easy to say why if a record is ‘public’ in the sense of being available in the basement of a courthouse somewhere it shouldn’t also be available online for all of us who find it hard to get to that basement. On the other hand, as a realistic matter, some filings - especially pro se filings in family law cases - have lots of sensitive (and basically irrelevant) personal information that could easily enable identity theft. Putting that data online exposes people to substantial risks that it would be good to shield them from.

Florida law on procedure and on technology issues often serves as a model for South American courts, and even for other states. By addressing this issue directly, the Supreme Court is shouldering this responsibility in an admirable fashion.

Judging from the press calls I’m getting, the part of today’s order that will get people excited is the interim so-called “moratorium” (expiring not later than July 1, 2005) on the provison of certain information for posting online. But if you read the whole order, you see that the Supreme Court exempts large classes of judicial information from what it rightly calls a “limited” moratorium—so at least at first reading it is hard to see what legitimate interests will be seriously harmed by this temporary order.

If You Don't Ask, You Don't Get. But Some Things You Shouldn't Ask

In my experience, law students are generally nice people, and no more unreasonable than any other slice of the population of similar age and background. But there are exceptions.

The all-time exception occurred several years ago, when a shy quiet student from one of my classes came into my office saying she wanted advice on a personal problem. I closed the door and put on my best sympathetic face, which became increasingly difficult as she told me her story. It seems that she had been cooking in her rented apartment and ran out of cooking oil, so she dashed across the street to the store to get some more. Unfortunately, she left the wok on the lighted stove top, something caught fire, and she burned down her entire apartment, and caused serious damage to the two neighboring ones too.

Was her problem that the landlord was suing her? No (or at least, thought I, “not yet”.) Was anyone hurt? No. Were the police giving her a hard time? No. Troubles with the insurance company? No, she had no insurance. But that wasn’t the problem; no, the problem was much simpler: now that the apartment was unlivable, she’d had to move somewhere else and her ex-landlord was refusing to return her deposit.

Faced with such overweening chutzpah, all I could think to do was to shake my head ruefully and say, that while I was always happy to help students, this sounded like a job for local counsel and - alas! - I am not a member of the Florida bar. (I also resolved then and there never to join the Florida bar.)

I’m reminded of this tale because of an incident last week, the first of its kind. A student who did an independent writing project last year for me came by. As sometimes happens here, her preferred schedule leaves her one credit short of what she needs to graduate. Would I be willing to retroactively give her an extra credit for last year’s writing project?

I guess that’s less brazen than demanding back your deposit after burning down your apartment…but only just.

By Popular Demand: E-mail Notices of Updates

While I was at FSU, my interesting and charming host at FSU, Jim Rossi, asked if I couldn’t have some way to send out an e-mail when I update the blog. This turns out to be slightly more complex than I expected, but I think I’ve got a method that should work. Use this link , or look in the right margin under “Automatic Discourse”. Personally, I am using a news aggregator to read blogs now, but not everyone is up for that.

Movable Type has a feature that sends out e-mail notices. There’s even a way to give users the option of signing themselves up. But while there is standard code for users to manage their own sign-ON, there is no self-help for sign-OFF. (I started to write that this is “inexplicable” and then decided it’s probably because MT doesn’t have a challenge-response or password system to prevent folks signing others up or cancelling others.) While I’m always happy to provide functionality and gimmicks on this blog, and even to spend ridiculous amounts of time coding stuff up, I am absolutely unwilling to spend time dealing with the inevitable multitude of half-dozen people who having signed up decide they want off. It has to be a self-help system. And MT just doesn’t do that.

So the solution is to use regular mailing list software. I’ve tried to set it up so that only I can post to the list, and that any other attempt to post to it will cause a bounce or discard, but as the only way to test this properly requires some actual posts to the blog first, please treat as experimental for at least the first few days.

Am I The Weakest Link?

Slashdot | Web Pages Are Weak Links in the Chain of Knowledge (quoting the Washington Post’s On the Web, Research Work Proves Ephemeral). It’s true that linkrot is a serious problem. It’s also true that archive.org is only a partial solution since it doesn’t get anything and some big content providers — like the Washington Post — block it.

Is the only solution to make (copyright busting?) offline copies of everything? If so, where’s the tool that will automate that for me, and — more importantly — index all that content on my drive, disk, or tape?

Democracy Be Damned: Fla Pols Won't Fund Small Classes

The voters of Florida made it clear they want small class sizes in Florida primary schools, passing a state constituional amendment mandating shrinking class sizes over a ten-year period. Then the Governor of Florida, Jeb Bush, future presidential candidate, made it clear that he intends to subvert the voters’ will because nothing, not even children or democracy, is worth raising taxes for.

Now comes the the Republican leadership in the legislature to say that they just won’t even try to pay for small classes, because, really, what’s the point in doing that unless the voters again make it clear that they really meant what they said. Better first to try to get the voters to repeal the constitutional amendment in the hopes it will all blow over. King says state can’t pay for smaller classes. And, hey, lets make the next vote in a special election in August, when turnout in South Florida is likely to be at its lowest! “The people have to speak,” one of the legislative leaders said…ignoring the fact that they already did.

Here’s how I previously summarized Jeb Bush’s Machiavellian actions on class size:

Schools in Florida, especially South Florida, are beyond overcrowded. Even in rich neighborhoods like mine, classes are taught in trailers, in cramped rooms sub-divided by makeshift partitions that leak noise and light, and in generally cramped and shabby conditions. The voters enacted a cap on class size, codified at Art. IX, , § 1, of the state Constitution that otherwise would never have been approved by our Republican-dominated legislature, and is which is loathed by Jeb Bush because he understands that it will require taxes to pay for it, and new taxes undermine his Presidential ambitions. It’s pretty clear that the voters really do want more spending on education (although not as much as the scary and not very plausible numbers Jeb Bush made up to try to defeat it), and that our state government would have left the kids in huge clases but for this. It’s also pretty clear that Jeb Bush wants to roll it back. He’s spoken of ‘devious plans’ to kill the measure, and even endorsed a second initiative to roll back the first —an idea that got about zero traction other than from some his own appointees to a state education board.

Thanks to South of the Suwannee for spotting the story about the legislature. Now please get an RSS feed….

Off to FSU

I’m off to FSU to give a paper on national ID cards, and won’t be back until late Monday. Getting around Florida is actually more difficult than going out of state. But at least there are some direct flights to Tallahassee. In January I’m going to Gainsville, and it turns out that it’s not so easy to get there….

The FBI Awakens Unpleasant Memories

F.B.I. Scrutinizes Antiwar Rallies. It’s of course legal for the FBI to gather intelligence on groups it thinks are dangerous. On the evidence to date, however, whether that assessment is correct in the case of anti-Iraq-war rallies is dubious. And the FBI’s activities vividly awaken memories of the FBI’s of civil rights violations the last time a paranoid Republican administration was in the White House and demonstrators were massing to protest a war.

Meanwhile, someone please explain to me how the FBI’s large-scale, organized campaign of assembling dossiers on the polticial beliefs of citizens exercising their constitutional rights to demonstrate peacefully — even the FBI admits that it “possesses no information indicating that violent or terrorist activities are being planned as part of these protests” and that “most protests are peaceful events.” — is not intimidation but, “demonstrators’ ‘innovative strategies,’ like the videotaping of arrests” is “‘intimidation’ against the police”?

Think of that — the police are being intimidated by the threat that the demonstrators’ accounts might be corroberated by a video camera. Offhand, I think I approve of the sort of intimdation that records exactly what is happening and leaves no room for testilying.

Musings About Law School Teaching, Exams, and Grading

Class preparation was an unusually heavy chore this year as I not only taught International Law for the first time, but the authors of my Administrative Law casebook issued a substantially revised (and actually much improved) edition. It taught much better than the old version, but making the best use of it required much more thought than just tweaking my old notes. It was all rewarding work, but it took time.

I’m one of those people who likes teaching new things to keep myself fresh. In 11 years of teaching I’ve taught Constitutional Law I, Civil Procedure I, Jurisprudence, Internet and the State, Internet and the Market, Trademark, and seminars on E-commerce, Digital Intellectual Property, and Internet Governance. And in the only course I’ve taught consistently since I started here — Administrative Law — I’ve used three different casebooks over the years. Perhaps that is why one of my students said I’m one of the most enthusiastic teachers he has. The way he said it, it didn’t sound entirely like praise (it was almost, “what’s your problem?”), but it made my day.

As the semester winds to a close, the focus of daily activity turns from preparing for class towards writing and then (*sigh*) grading the final exams. Every semester is the same cycle. My students are very good in class — indeed this year’s International law students seem exceptionally good — and I get hopeful. Maybe this year will be the year I get a crop of great exams. And there usually are one or two great ones, and a few good ones. But the modal student cannot write a good paragraph, much less sustain analysis over several pages. I blame the high schools and the colleges. Surely it’s not too much to expect that the possessors of BA’s, and good to excellent grades, from excellent to good colleges, should be able to write? But again and again my hopes are, modally, dashed.

I’ve experimented with exam form. For upper-class courses, I tend strongly to open book exams, and sometimes a take-home. Life, after all, is usually open book, and is often a take-home. This makes exam-writing a lot tougher of course, because you have to test understanding not just memorization. A good test has to have questions that are not too tricky, and yet not blindly obvious. In a fast-moving area of the law, this can be a hard zone to find, especially if you know the subject well, since there’s always a danger of assuming students will know something that seems obvious to an expert but may seem baffling to a relative beginner. And for Administrative law, which I’ve taught many times, there’s the constant struggle to avoid writing questions that end up sounding too much like last year’s.

In the age of Google, Westlaw, an open-book take-home is a special challenge, as I need to write something with sufficiently idiosyncratic facts that the answer is not ‘out there’ somewhere—and I have to check for that, which takes time.

For first year classes we have a mandatory curve, which is fair given that we teach multiple parallel sections of the same classes, and students have no ability to select among them. Years ago, we also put our adjuncts on a curve for upper-class courses, because some of them were giving all A’s — whether due to sympathy for versions of their former selves, to inflate their enrollments, to avoid the trouble of actually reading exams, or to boost their student evaluations (which lead to rehiring), I have no idea.

Full-time staff don’t have to grade upper class courses to a curve, and I do not. I grade to my idea of an absolute standard, perhaps modified down a little bit to accomodate reality. My dream is to have a class do so well that they all deserve A’s, which I joyfully give them. Nevertheless, most years I get a normal distribution around a B or C+, or a double humped curve around a C and a B+. (We have no B- grade, for no discernable reason).

Taking exams is the pits. Writing them is almost as bad as taking them. Grading them is worse, because it takes much longer, is much duller, and contains infinite possibilities for self-reproach (‘how could I have said something that would make them think that????’). I am the world’s slowest grader. Being married to a grading machine only makes it worse.

FTAA 3rd Draft Leaves ICANN/UDRP Provisions Unchanged, Unagreed, and Probably Optional

The third draft of the FTAA is now online. The Revised Intellectual Property Chapter, FTAA - ALCA - ZLEA - FTAA Draft Agreement - 2003 - Chapter XX, is still crawling with brackets (meaning there is no agreement), and Art. 13, which I criticized recently, is unchanged — but now it seems the whole chapter may be optional!

Not Geniuses has links to summaries of the overall course of the negotiations. It seems to have gone in the direction of ‘FTAA a la carte’ — and the IP provisions appear to be among the optional ones.

Of course this means the US will step up its pressure to put IP rules into bilateral trade agreements, but overall this is still progress.

Cat in The Hat, The Movie, Falls Flat

The film does not shine
It’s a ripoff, they say
Which we knew in advance
From the adverts they play

Anyone who mistreats a children’s classic deserves what they get. The Cat in the Hat was one of my favorite books when I was little, and I enjoyed reading it (over and over) to my kids when they were little.

The reviews of the new Cat in the Hat movie are scathing, and I’m not at all surprised: When I was in New York last week, I saw an advert on TV for some product in which the movie version of the Cat in the Hat explained to two stock children (‘Gee Cat, thanks”) why they should use this cleaning product instead of others — Cat in the Hat, big spot on wall, get it? Ick.

Stands to reason that anyone who would prostitute a children’s icon like that lacked the sympathy with the material to make a good movie. Let’s hope they go broke.

Update: The marketing is much worse than I ever suspected.

Is "Is the Blogosphere Sexist?" The Right Question?

David Pollard (who has a wonderful, wonderful Blog called How To Save the World asks, Is the Blogosphere Sexist?. I think it’s a fine essay, but I wonder if it’s the right question.

First, I’d like to know, ‘Compared to What’? I teach on a faculty that has far fewer women then men, so I’m prepared to believe there is a fair amount of sexism remaining in society. (On the other hand, we have had three female Deans in our fairly short history, including one whose ghost all but still walks the halls, so it’s not all bad news here.) So the question may not be “are blogs sexist” but rather “to what extent to do blogs replicate or transcend existing patterns of behavior”.

Obviously, it would be great if we could show the flowering of public discourse to be a Habermasian public sphere operating without coercion or prejudice. But that is not very likely. I’d settle gladly for the news that the online exchanges are relatively less sexist and relatively less irrational.

No one in his right mind thinks that blogging, or the Internet in general, is free of strategic behavior (like, for example, frivolous threats of lawsuits). It stands to reason that when we “go online” (actually write stuff for public consumption), we are more or less ourselves. But it’s also conceivable that, as group norms evolve online, and as communities of discourse form and re-form and cross-pollinate, we can grow and change, and collectively become more than what we were.

Here’s hoping.

Alcee Hastings Won't Run For Senate

Hastings Decides Against Fla. Senate Bid. Well, although he had a shot at the nomination, he had no real chance to be elected. Which is sort of a shame, as he is a very impressive human when seen up close.

I guess this partly explains the mystery of Hastings’s endorsement of Lieberman — Hastings didn’t care about the tactical implications for a Senate race because he wasn’t making one.

Notes From FTAA Fontlines

FTAA IMC. It looks from this page as if the police in Miami are on a hair trigger — which fits with everything we’ve been reading in the local press for the last couple of weeks. It would be tempting to dismiss this web page as agitprop — and it may be — but certainly the cops came armed for bear.

The mainstream media reports, Thousands march peacefully after early clashes. It starts off with how great things are, but the further you go into the article, the less great they sound — although so far at least there have been no major incidents, just many minor ones.

Even the boosterish Herald reports,

Among those arrested today: Marc Steier, an attorney with Miami Activist Defense, which defends the rights of protesters. He said he was seized by police early this morning and charged with obstruction of justice as he attempted to assist protesters.

”I didn’t last 25 minutes on the street,” he said.

And this doesn’t sound fair:

Organizers said the route and the protester turnout was limited because of police actions. At the last minute, they said, police deleted a few blocks from the southernmost section of the route — the blocks that would have brought marchers relatively close to the Inter-Continental.

Platoons of officers appeared seemingly everywhere in the heart of downtown Miami. Many officers were dressed in riot gear and carried batons and plastic shields. Many police and media helicopters hovered overhead.

People I spoke to yesterday, late-middle aged academics trying to get to a hotel, near the FTAA meeting described a downtown under virtual lockdown with tanks on the street and an oppressive police presence.

Judging from the Herald, however, it may ‘just’ have been an armored Humvee…

But many participants complained about what they called police intimidation and heavy-handed tactics.

”I think I’m in a third world country …,” said Sam Lender, 82, of Delray Beach. “When we got off the bus at Flagler we saw a tank and guys with gas masks and riot gear. Where’s the protection against terrorism? Are we the terrorists?”

The ”tank” was an armored Humvee vehicle on loan from Broward County.

Money Map: A Great Way to Display Information

This is a simply wonderful way to display one type of information: a map of the US showing where candidates are getting their money. (Via Joho The Blog.)

More Arar

Here’s some general information relating to the Arar case, including a timeline and a discussion of one of the relevant limits on the use of torture. The last two links suggest that it was the Canadians who fingered Arar to the US authorities, although whether they did so a routine matter or in the hopes that the US would do Canada’s dirty work is not addressed. The Canadians do say that they never expected Arar to be sent to Syria, and didn’t get advance warning of the transfer, although if that was the point of the exercise why would they?

• Canadian Broadcasting Company (CBC) Arar timeline
• Wikipedia Entry
• Lawyers Committee Urges Investigation Into US Actions in Syrian Torture Case (Nov. 7, 2003), which says,

  Article 3 of the Convention on Torture, to which the United States is a party, states:

  No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture…. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

  U.S. treaty obligations and policy have been implemented through regulations issued by the Department of Justice, the Department of Homeland Security, and the State Department, that codify the United States’ commitment not to send individuals to another country where they are likely to be tortured. Among other protections, these binding regulations require that individuals facing deportation or extradition be given an opportunity to be heard on the likelihood of torture in the country to which they are facing return. The Arar case suggests that either those procedures are not being followed, or that they are inadequate.

• Ottawa asks U.S. for explanation of Arar case, but turns down public inquiry (Nov. 5, 2003)
• Joseph Reagle, You Might Know a Terrorist, and Pay For It
• Amnesty Canada
• Canada supplied information used against Arar, says solicitor general (Nov. 19, 2003)
  

One should not be especially hopeful about the domestic Canadian inquiries unless Parliament or the Prime Minister set up a special independent panel, as the track record of police self-investigation in Canada isn’t great. The standard police complaints body lacks the authority to get information from the security services, much less any means by which it can even send queries to the US side.

Guardian: Richard Perle Admits Iraq Invasion Was Illegal Under International Law

War critics astonished as US hawk admits invasion was illegal

International lawyers and anti-war campaigners reacted with astonishment yesterday after the influential Pentagon hawk Richard Perle conceded that the invasion of Iraq had been illegal.

In a startling break with the official White House and Downing Street lines, Mr Perle told an audience in London: “I think in this case international law stood in the way of doing the right thing.”

President George Bush has consistently argued that the war was legal either because of existing UN security council resolutions on Iraq - also the British government’s publicly stated view - or as an act of self-defence permitted by international law.

But Mr Perle, a key member of the defence policy board, which advises the US defence secretary, Donald Rumsfeld, said that “international law … would have required us to leave Saddam Hussein alone”, and this would have been morally unacceptable.

French intransigence, he added, meant there had been “no practical mechanism consistent with the rules of the UN for dealing with Saddam Hussein”…

This ‘the ends justified the means’ argument is internally consistent, but it’s weird in the extreme to have all the former critics of humanitarian intervention reborn as bleeding hearts. Or would be if we believed they meant a word of the humanitarian stuff (postwar planning? us?)….

Maher Arar Affair: What is the Pluperfect of 'Cynic'?

The Maher Arar case is very disturbing, although the callous cynicism of Team Bush that it appears to reveal can hardly be a surprise at this point.

The key allegations are:

• Arar, a dual Syrian-Canadian national, was transiting through a US airport on his way to Canada when he was stopped by US officials who believed him to be a terrorist, or in cahoots with terrorists.
• The US government held him virtually incommunicado for days. Then it let him meet the Canadian consul — once. And a lawyer — once, for thirty minutes.
• At some point before or after those meetings, one or more hearings relating to where Arar would be sent were held without giving Arar or his lawyer notice or an opportunity to be heard.
• Acting AG Larry Thompson sent Arar to Syria, over his expressed desire to be sent to Canada, in circumstances where Thompson knew or should have known that Arar would be tortured.
• And Arar was tortured by Syrian intelligence for more than ten months.

In short, the claim is that the US arranged for Arar to be tortured via an extraordinary rendition. Presumably because the Ba’athist Syrian intelligence has been very cooperative in the war on (religious) terror.

But you see, that claim is really very unfair. The US didn’t arrange for the Syrians to torture anyone. No, no, a thousand times no. In fact, the US got the Syrians to promise that they wouldn’t torture Arar. And the Justice Department not only believed those assurances then, they believe them today! The Syrians would never torture a suspected al Queda member when they had promised us they wouldn’t. Or, at least, it was certainly reasonable of the good, honest, acting Attorney General to rely on the Syrians’ assurances, for we well know that they are a nation firmly committed to the Rule of Law.

According to the Washington Post, the US government position is that (1) Arar deserved it (“when apprehended at the airport, Arar had the names of ‘a large number of known al Qaeda operatives, affiliates or associates’ in his wallet or pockets.”) and (2) “the removal of Mr. Arar was accomplished after interagency consultation and in full compliance with the law and with all relevant international treaties and conventions.” Among which are several prohibitions on torture. And then, of course, (3) this jem, from another article in the Washington Post,

U.S. officials said yesterday that they decided to send a Syrian-born Canadian citizen to Syria last year only after the CIA received assurances from Syria that it would not torture the man.

Maher Arar, recently freed from prison, said he pleaded with U.S. authorities not to send him to Syria precisely because he believed he would be tortured. Arar has said he was tortured with cables and electrical cords during his 10-month imprisonment.

U.S. law strictly prohibits sending people — even on national security grounds — to a country where it is likely they will be tortured. Yesterday, a Justice Department spokesman confirmed that the Syrian assurances allowed them to legally send Arar to Syria.

Syrian has said it did not torture Arar. “We welcome statements by the Syrian Embassy, as it is fully consistent with the assurances the U.S. government received prior to his removal” from the United States, the Justice Department spokesman said.

In a Nov. 7 speech, President Bush said Syria has left its people “a legacy of torture, oppression, misery and ruin.” Spokesmen at the Justice Department and the CIA declined to comment on why they believed the Syrian assurances to be credible.

There are a lot of people writing about this: Brad DeLong, Unfogged, Chun the unavoidable, the world press.

Add it to the list: Iraq, Padilla, Hamdi, Mohamed K. Bellahouel, Guantanamo…

Domain Names and the FTAA: A Bad Mix

[HTMLized version of document presented to today’s conference on Negotiating Intellectual Property Provisions in Free Trade Agreements]

FTAA

Intellectual Property Rights Chapter, Part II, Section 1
Article 13 — Domain names on the Internet

[13.1. Each Party shall participate in the Government Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN) to promote appropriate country code Top Level Domain (ccTLD) administration and delegation practices and appropriate contractual relationships for the administration of the ccTLDs in the Hemisphere. Each Party shall have its domestic Network Information Centers (NICs) participate in the ICANN Uniform Dispute Resolution Procedure (UDRP) to address the problem of cyber-piracy of trademarks.]

[13.1. Each Party shall make efforts, to the extent possible, to promote an adequate administration of domain names.]

Summary

The first paragraph is highly objectionable. The second is acceptable, although it is vague.

Nations should not be required to impose the ICANN Uniform Dispute Resolution Procedure (UDRP) by law on their citizens because:

• Governments should not be subordinate to the decisions of a private corporation, ICANN;
• Nor should the legal rights of citizens be decided by a private corporation;
• The UDRP is subject to change, and governments should remain free to opt-out if its provisions become unacceptable;
• As it stands, the UDRP fails to guarantee basic due process to consumers;
• Serious questions have been raised about the even-handedness of some of the arbitration service providers who supply the arbitrators for the UDRP.

Governments that have thought most carefully about what rules should be imposed on their ccTLDs and their registrants have imposed their own arbitration systems which, while modeled after the UDRP, use home-grown rules that more closely track local law, customs, and commercial expectations. Canada is the leading example of this. This choice should not be over-ridden by the FTAA.

The term “Network Information Centers (NICs)” used in the first version of Art. 13.1 is poorly chosen because it refers to an entity concerned with the allocation of Internet Protocol numbers, rather than bodies such as registrars and registries that actually allocate Domain Names.

Requiring nations to participate in the ICANN Government Advisory Committee commits them to use resources attending far-flung meetings in expensive venues all over the globe, meetings which may not bring much in return. The GAC is in any event a secretive and undemocratic organization, so it is not obvious that governments would necessarily see their participation as warranted. The appropriate level of participation in the GAC should be left up to individual governments to decide for themselves.

In contrast, the second paragraph in the proposed text of Article 13 is acceptable. Although unobjectionable as written, its very lack of clarity — what is “an adequate administration of domain names”? — is slightly troubling, and perhaps invites future mischief.

Analysis & Explanation

Background

Domain names are the alphanumeric text strings to the right of an “@” symbol in an e-mail address, or immediately following the two slashes in a World Wide Web address. Thanks to a massively distributed hierarchical system for resolving domain names to IP numbers, the DNS, Internet software can rapidly and invisibly convert a domain name to its unique Internet Protocol (“IP”) number, the number used to route data correctly.

There are many “top level domain names” (TLDs), including .com and also 244 “country-code top-level domains” (ccTLDs), all of which are two-letter codes, and most of which use the two letters associated by ISO Standard 3166 to refer to a country. Thus, Canada’s ccTLD is .ca, and Columbia’s is .co. These ccTLDs are managed either by national governments, or by private citizens domiciled in the relevant nation, ensuring that the government has regulatory authority over the ccTLD.

Traditionally, second level domain names, such as “example” in example.ca, have been allocated on a first come, first serve basis. Every ccTLD has its own rules; some impose limits on who can register what, but others do not. This sometimes results in unhappy trademark and service mark owners, late to the Internet, discovering that “their” name is already registered by another. In some cases the earlier user is a legitimate business from a different sector, or is a non-commercial user who cannot be considered an infringer. But in other cases, the first registrant is either a standard trademark infringer, or a so-called “cybersquatter” — a person who in the business of registering domain names in the hope of reselling them to owners of identical marks, and who counts on the high cost of litigation, or its slow pace, to negotiate a windfall.

The Internet Corporation for Assigned Names and Numbers (ICANN) is a California non-profit corporation that manages the Domain Name System under contract to the U.S. Department of Commerce. It has an international board of directors, and an unusual structure that includes a “Government Advisory Committee” (GAC) which, despite its name, participates in the selection of ICANN directors and has a right of consultation on key policy issues.

ICANN imposes a mandatory arbitration clause on registrants to .com and other “global” TLDs (gTLDs) that are not linked to anparticular country. The clause can be invoked by anyone, anywhere, who thinks that his trade or service mark is infringed by a second-level domain name registered in a gTLD. The UDRP is popular with mark holders, who find it quick and relatively cheap. It has been criticized by the majority of academics who have studied it for lacking procedural due process, having structural biases, and for failing to give due consideration to the expressive rights of non-commercial users seeking to criticize corporations by hosting web sites with derogatory domain names (e.g. “companysucks.com”).

Analysis of First Paragraph of Art. 13

The major problem with the first paragraph of proposed Art. 13 is that it forces signatories to impose ICANN’s UDRP on the users of their ccTLDs, who will primarily be their own citizens (ICANN already imposes the UDRP on all registrants in gTLDs such as .com, and no FTAA action is required to maintain the status quo in this regard). Participation in ICANN’s UDRP for every ccTLD should not be required by treaty because ICANN is a private corporation. International law should not make governments subordinate to a private corporation. Nor, if the national ccTLD is private, should a government be required by international law to subordinate its nationals to decisions made by a foreign corporation.

Indeed, some of the governments that have thought most carefully about this question, such as Canada for example, have adopted their own domain name arbitration systems for their ccTLDs. While modeled after the UDRP, these use home-grown rules that more closely track local law, customs, and commercial expectations. Canada’s system is notably fairer procedurally than ICANN’s.

ICANN can change the UDRP at any time. Indeed, discussions are currently under way to expand the reach of the UDRP. Even if one is satisfied with the UDRP at present, states should not allow themselves to be locked into a system that might change in ways they find objectionable. And, there are reasons to think the UDRP is not ideal:

As it stands, the UDRP has a large number of obscure but significant procedural defects. Because of these, the system fails to guarantee basic due process to consumers who register domain names.

In addition, serious questions have been raised about the even-handedness of some of the arbitration service providers who supply the arbitrators for the UDRP; as currently written, the UDRP creates economic incentives for arbitration providers to be “plaintiff-friendly,” and to discriminate subtly against consumers. Service providers’ are nor required to disclose their methods of recruiting and assigning arbitrators, and the system permits provider manipulation of panelist selection to achieve a desired result in a given type of case.

Currently, the UDRP rules do not [corrected] require actual notice to the defendant, nor do they require sufficient efforts reasonably calculated to achieve actual notice, especially in countries with inferior postal systems. The time limits to respond are very short, and put ordinary people who do not have an internet-savvy trademark lawyer on permanent retainer at a substantial disadvantage. Although the UDRP purports to have word limits, these are routinely circumvented by the use of “attachments” further adding to the burden faced by parties needing to prepare their responses in a short time.

A final note on the first paragraph: The term “Network Information Centers (NICs)” used in the first version of Art. 13.1 is poorly chosen because this term usually refers to an entity concerned with the allocation of Internet Protocol numbers, rather than to the bodies such as registrars and registries that actually allocate Domain Names. The confusion could be damaging as to date the two regimes have intentionally been kept separate, and indeed are subject to very different governance mechanisms. Internet Protocol numbers are controlled outside the ordinary ICANN process via regional bodies ⁽¹⁾ and by the Internet Assigned Numbers Authority (IANA), which is technically a separate function from ICANN’s management of domain names.

Analysis of Second Paragraph of Art. 13

As noted above, the primary problem with the second paragraph in the proposed text of Article 13 is that it is vague. It is not clear what constitutes “an adequate administration of domain names”, which perhaps invites future mischief. Since the duty to act is qualified by “to the extent possible” this provision does not appear too troublesome.

For further Information

     On ICANN

• Milton Mueller, Ruling the Root (MIT, 2002)
  
• A.Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), available online http://www.law.miami.edu/~froomkin/articles/icann.pdf
• A.Michael Froomkin & Mark Lemley, ICANN and Anti-Trust, 2003 Illinois L. Rev. 1, available online http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf.
• ICANNWatch.org, http://www.icannwatch.org

On the UDRP

• A.Michael Froomkin, ICANN’s “Uniform Dispute Resolution Policy” — Causes and (Partial) Cures, 67 Brooklyn Law Review 605 (2002), available online http://personal.law.miami.edu/~froomkin/articles/udrp.pdf
• Elizabeth G. Thornburg, Going Private: Technology, Due Process, and Internet Dispute Resolution, 34 U.C. Davis L. Rev. 151 (2000);
• Michael Geist, Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP, http://aix1.uottawa.ca/~geist/geistudrp.pdf (Aug. 2001);
• Milton Mueller, Rough Justice: A statistical assessment of ICANN’s Uniform Dispute Resolution Policy, http://dcc.syr.edu/roughjustice.htm

  
  

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1. These are APNIC (Asia Pacific Network Information Centre) - Asia/Pacific Region, ARIN (American Registry for Internet Numbers) - North America and Sub-Sahara Africa, LACNIC (Regional Latin-American and Caribbean IP Address Registry) - Latin America and some Caribbean Islands, RIPE NCC (Réseaux IP Européens) - Europe, the Middle East, Central Asia, and African countries located north of the equator, and soon to be joined by AfriNIC (African RIR, proposed).

How School Vouchers (Don't) Work In Florida

As Congressional Republicans plan to violate Washington DC’s home rule, and force a school voucher system on the city, I think it’s useful to review how vouchers are working here in Florida.

I’ll support almost anything reasonably calculated to improve the access of poor people — and rich people too! — to quality schooling for kids. Abstractly, vouchers look like they might do that, subject to a small host of caveats about the effect on kids with serious problems who might end up being treated like the ‘lemons’ of a primarily for-profit system, or dumped into the vestigial remains of an underfunded public system.

Given the Florida experience, however, one has to ask whether vouchers in practice are in fact reasonably calculated to be helpful on balance. As usual, the Florida Blog is on top of this one, with links to:

• Nonpublic schools wrote own ticket on form
• Come fall, the heat is off: The state’s much-touted sworn affidavits are making school vouchers look increasingly like blank checks.
• Avoid state meddling: Start a schooll
• Bush aides considered fabricating voucher explanations
• Cooking up a coverup
• Education commissioner concedes voucher failings

Talk about waste, fraud and abuse! Not to mention special interest lobbying, hogs at the trough, and every other cliche too.

Compare and Contrast

In one corner, William Safire, being tactical. In the other corner Joshua Marshall being reasonable. (And, in the background, the Defence Dept. disowning the report Safire is relying on.) You gotta wonder about prundits when they rely on stuff that’s already been disowned and refuted. Or just turn to your Daily Howler for a very jaundiced view of the pundit class.

The Safire article is a list of those who he thinks should confess error. Among them,

Former spooks who convinced reporters that there was never any connection between Saddam’s Iraqi regime and Osama bin Laden’s terror network would forthrightly assert they were uninformed about the decade-long links that were revealed in the classified memo the Senate Intelligence Committee requested from Under Secretary of Defense Douglas Feith. (The secret memo detailing 50 instances has gone relatively uncovered by major media because it surfaced in the current Weekly Standard, but is the subject of an automatic leak investigation — yet another time-wasting mistake.)

It’s an especially strange comment to make since the Dept. of Defense — no stranger to the neo-con world view, basically disowned the memo’s conclusions, saying “News reports that the Defense Department recently confirmed new information with respect to contacts between al Qaeda and Iraq in a letter to the Senate Intelligence Committee are inaccurate.”

Joshua Marshall has already been there, weighed it, and found it wanting

…is it “case closed”? Not quite. More like, case restated.

What do we already know about the intelligence wars over the Iraq-al Qaida link?

We know that most of the Intelligence Community didn’t think there was much there. Some contacts, but nothing substantial. We also know that Doug Feith — along with other administration appointees — didn’t agree. And Feith set up his own intelligence shop at the Pentagon to review all the raw data and find what the CIA and others had missed, misinterpreted or buried.

They came up with a raft of purported connections between Saddam and al Qaida. But when they presented their findings to professional analysts in the rest of the Intelligence Community, most notably at the CIA, the consensus was that those findings didn’t pass the laugh-test.

And who put together this new memo, the one the Standard article is based on? “The U.S. Government,” as the headline of the article says?

Not exactly. …. This memo is what Doug Feith sent them representing their side of the story. With the exception of some tidbits from interviews with Iraqis now in custody, this is, to all appearances, the same bill of particulars that Feith’s shop put together in 2002 and which was panned by the analysts in the rest of the Intel community.

So, the first point to make is that there seems to be little if anything here that the folks in the rest of the Intel Community — outside of Special Plans — did not see before concluding that there were no significant links between Iraq and al Qaida.

Point two is that Feith’s shop, the Office of Special Plans, the original source of this memo, gained an apparently richly-deserved reputation for what intel analysts call cherry-picking. That is, culling raw intel data to find all the information that supports the conclusion you want to find and then ignoring all the rest.

Now, of course, Feith’s advocates say that everyone else was just doing their own sort of cherry-picking, picking the evidence that supported their preconceived notions, etc. But this is simply another example of a pattern which we see widely in this administration: the inability to recognize that there is such a thing as expertise which is anything more than a cover for ideological predilection (for more on this, see this article.)

More to the point, there’s now a record. These are the folks, remember, who had the most outlandish reads on the extent of Iraq’s WMD capacities and the most roseate predictions about the ease of the post-war reconstruction. So their record of interpreting raw intelligence is, shall we say, objectively poor.

Spot the dinosaur.

Alcee Hastings Picks a Presidential Candidate: Lieberman

I didn’t see this one coming. Lieberman to pick up endorsement of Florida Rep. Hastings

I have no idea how much of this is tactical, and how much is something else like personal friendship. Alcee Hastings is running for Senate in Florida. In a crowded field he’d have a shot at the nomination, but how endorsing Lieberman helps him get that nomination I fail to see. Peter Deutsch will probably get most of the Jewish vote. And the odds of anyone being fooled into thinking Rep. Hastings is a conservative Democrat are pretty low, although he’s less predictable and more interesting than most Representatives. I suppose there’s some reason to think Lieberman will run strong in Florida, if his campaign has any juice left by the time we have our primary.

It could well be that Hastings just likes Lieberman for some reason. But it’s hard to see what that reason could be other than something personal. Lieberman is my least favorite of the major Democratic candiates because of his disgraceful reaction to the courageous decision by Illinois Governor George Ryan to commute the sentences of 167 death row prisoners

“Governor Ryan’s action was shockingly wrong,” Mr. Lieberman said … “It did terrible damage to the credibility of our system of justice, and particularly for the victims. It was obviously not a case-by-case review, and that’s what our system is all about.”

Sorry, that decision of Governor Ryan’s was shockingly right.

Here’s Alcee Hastings’s political mapping (vintage 2000):



Here’s Joe Lieberman’s position on the same map:



Hmmm. Less distance than I’d have expected.

Update on Digby Jones Quote

I’ve had an emailed reply from the efficient, and no doubt quite busy, CBI press office to my query asking for confirmation that Director General Digby Jones had said what the Evening Standard quoted. In my query I asked for the text of Digby Jones’s speech. Here’s the reply:

There is no speech this came from an interview with the Evening Standard - Digby Jones is speaking today though, at 12.30

The speech and press release will be on the website later.

And it is, but it’s about the EU.

Second Data Point on Theft of Democratic Memos

Last week it seems that Republicans managed to purloin a Democratic memo relating to the Senate Intelligence committee — either from a computer or a trash can. At the same time, someone was stealing Democratic memos relating to the Senate Judiciary committee: Apparent Theft Of Democratic Memos Probed (washingtonpost.com).

Republican hacker at large?

Are They That Stupid? Someone Is, And It's Bad News

Brad DeLong expresses doubt as to whether (as I noted earlier that the Evening Standard had reported) even the Bush administration could be quite dumb enough to be strong-arming US defense firms in hopes of getting them to close up shop abroad and bring jobs to the US:

I do not believe this. I cannot believe this. Incompetent, short-sighted, ungrateful, and mendacious as we all know the George W. Bush administration to be, even they wouldn’t do something as stupid and counterproductive as this.

Would they?

I understand Brad’s reluctance. Like him, I don’t want to think that our leaders can be that dumb. And the Evening Standard is not the gold standard for reporting.

Trouble is, it’s not that easy to figure out exactly whether the Director-General of the Confederation of British Industry Mr. Digby Jones actually said what was reported in the Evening Standard. The text of the speech doesn’t seem to be online. I’ve e-mailed the Confederation of British Industry in the hopes they will send it to me.

In the mean time, we have to make do with the newspapers. The usually reliable Financial Times more or less echoes the Evening Standard. A Scottish paper suggests this isn’t about private strong-arming so much as the “Buy America” campaign. And the Daily Telegraph says that the pressure came from Congresspeople — some of whom unquestionably are this stupid — and not from the White House. And, indeed, if you look at what the FT and ES actually say, they don’t finger the Bush administration as such — just give the strong impression the Administration is the source of the pressure from the context, which is about Bush’s visit.

But even if the pressure came from Bush’s allies in Congress, instead of directly from the administration, this isn’t good.

Start with the Financial Times, which is highly reliable. In Testing time for very special friends, the FT reports the various and growing US-UK tensions over Guantanamo and over economic relations, and then notes that,

there is deep suspicion in business circles these days of the extent to which the US is actually on the UK’s side, a suspicion accentuated by the imposition of hefty protectionist tariffs on European steel imports.

The suspicion was all too evident yesterday at the annual conference of the CBI, the employers’ body, where Digby Jones, director-general, made plain to delegates in Birmingham his concerns about the US.

“Three chief executives of American companies investing in Britain have told me to my face that they have been told to close down, bring their stuff home and make it in the US,” said Mr Jones. “Whether flouting international law with their steel tariffs or telling their companies to come home, this bullying affects Britain and British jobs. We are America’s biggest trading partner but if this escalates it hits us worst because we are such a big player in the world market.”

The Herald, a Scottish newspaper, suggests the context for the quoted remark is the US’s ‘Buy America’ campaign. (Update: As far as I know, while there are existing “Buy American” laws on the books, the attempt to toughen them in the 2004 Defense Authorization Act did not succeed. )

That’s also the Daily Telegraph’s line, with the added bit that the pressure came from Congress rather than the White House:

Mr Jones also said he knew of two US companies - one defence rated and one manufacturer - which were being pressured by US congressmen to move their UK operations to America.

He added that a third company from the defence sector had told him that one of its American clients had been told by the US Government to buy its goods from an American rival and it would refund the difference.

Mr Jones said he had urged Mr Blair to raise the “buy America” campaign with Mr Bush. He said: “This goes to jobs of ordinary skilled people in Britain. This will cause unemployment in Britain and this is from our best friend.”

So there seem to be two versions of this story, one awful, one just bad.

If the administration is behind this pressure, it’s awful. But even if it’s just Republican congressmen, it’s bad. For whether this pressure comes directly from Bush or just from his domestic political allies who he apparently cannot control, just think about the message this story sends the world: If there is one government that supported Bush and gave him essential political cover over Iraq, it was Tony Blair’s Britain. And this is what they get in return?

Imagine the effect on countries trying to decide whether to cooperate with us in the future.

Robert Kagan Explains Why Dean Is No McGovern

No George McGovern (washingtonpost.com). Robert Kagan can read, and he’s no prisoner of anyone’s dogma but his own. So he doesn’t accept the Republican spin points about Howard Dean.

On the contrary, he sees what I see: Howard Dean is no peacenick at all — he’s squarely inside the somewhat militaristic consensus of the center-right foreign policy establishment. Dean just thought the Iraq war was unwise and unnecessary — and was able to say so because he had nothing to lose. (I suspect many others thought the same thing at the time but had more to lose and kept quiet.)

Kagan delivers a few jabs, but they are above the belt. The first is that Dean will disappoint the most dovish Democrats.

That’s true, and it could hurt Dean in the primaries (but probably won’t as campaign cognitive dissonance is setting in among his supporters), although it makes Dean more electable in the long run. As Kagan puts it, “The Bushies are planning to run against a dovish McGovern, but there’s a remote possibility they could find themselves running against a hawkish Kennedy.”

The second jab is that “the rest of the world should note well … that the general course of American foreign policy is fairly stable and won’t be soon toppled — not even by Howard Dean.” That’s true — but only if you count Bush and the maniacally unilateralist Velociraptors at the Defense Department as outside the US foreign policy consensus. Any democrat running will return to the pre-Bush vision that our alliances are worth maintaining, the UN has a place in the world, and not every treaty (other than anti-democratic trade deals) is a mugging.

British Political In-Jokes About Bush Visit

If, like me, you pay some attention to British politics you will probably find this spoof memo about Bush’s state visit to the UK to be pretty funny: Telegraph | Opinion | Palace-speak for the Bush men

If the name “John Prescott” means nothing to you, it’s still funny, but you’ll probably miss some of the best jokes.

Bush Employment Plan Revealed: Start a Trade War

US firms told ‘take UK jobs home’: Turns out that the Bush folks do have a plan to increase US employment, one whose stupidity boggles the mind: blackmail defense contractors into closing plants in allied countries and repatriating the jobs. The idiocy of this thuggish idea exceeds even that of the incredibly stupid and obviously illegal steel tariff.

Ok, the Evening Standard is not the New York Times, but it is London’s major evening paper, and it’s hard to believe they would get this wrong:

US-based multinationals have been told they will receive compensation from American trade authorities if they cancel contracts in Britain and take jobs home, according to CBI director-general Digby Jones.

…

Speaking at the CBI’s annual conference in Birmingham, Jones said: ‘Three chief executives of American companies investing in Britain have told me to my face that they have been told to close down, bring their stuff home and make it in the US.’

He said the companies were major employers in defence or manufacturing.

Jones continued: ‘Whether flouting international law with their steel tariffs or telling their companies to come home, this bullying affects Britain and British jobs.

(Spotted by the sideshow.)

Well, that ought to make for fun discussions with Tony Blair, don’t you think? And for a good show at the next Question Time…

That Trademarked Baby

US babies get global brand names. As more and more ordinary words become national and international brands, some overlap between personal name space and TM-space was inevitable. But naming kids “ESPN”? I think naming a child after a brand is a pretty awful thing to do — but that doesn’t make it illegal.

I haven’t researched it, but it seems to me that were any owner of even a coined famous mark (the very, very strongest kind) to complain about a child bearing their trademarked name, the company would lose. Mere naming of a child is a non-commercial use of a word, and federal trademark law, at least, requires commercial use of a term for both traditional infringement and for federal dilution claims. Furthermore, the naming is neither dilution nor tarnishment (although it could lead to either in the long run).

The more interesting legal issues arise if the kid ever tries to use his name in commerce. Even people named McDonalds can’t open eponymous burger joints today. So the kid might have more constraints on the use of his name than the rest of us.

Drawing the line isn’t easy, since dilution law is fairly hair-trigger, and doesn’t require even an imminent likelihood of confusion, must less evidence of actual confusion. Nor does it require that the two sets of goods be in competition — just that the new user be thought to “blur” the uniqueness of the prior user’s famous mark.

Now suppose the kid with the funny name grows up and becomes a major recording artist, uses his own name, and sings songs that the famous, coined, mark holder thinks blur or tarnish the brand…. The mark holder would certainly have an arguable case that the former kid should call his act something else.

I think the former kid should win, but it’s a comment on the state of the law that this isn’t as obvious a result as it might be, especially if the dilution claim was based on one of the more aggressive state’s laws.

(If thousands of people name their kid after a trademark, is it at risk of becoming generic? Only for kids, not for the class(es) of goods on which the mark is used in commerce.)

On a marginally related note: McDonalds complained about “McJob” being in a dictionary (although the word is apparently there to stay).

Meanwhile, here’s my policy on T-shirts and other goods with prominent logos: If you want me to wear your logo (I.e. advertise your brand) you have to pay me. It may not cost much, though: Give me a free t-shirt, and I may wear it if it’s nice….

I usually also avoid clothing with even small, externally visible logos, but I’m not fanatical about it, especially when it comes to blue jeans and sneakers (since they all seem to have them).

Student Teaching Evaluations

Last week the Dean of Students office took ten minutes out of each of my two classes to administer our student evaluation forms. In principle this is a good thing. In practice, the verdict is much less clear, an uncertainty exacerbated by reading Michael Huemer and Mary Gray and Barbara R. Bergmann (references via the Invisible Adjunct).

Ideally, students would evaluate a class after they had all of it, including the exam. That’s especially significant in a course like Administrative Law which, for many students, only starts to make sense when they review and find that all the pieces actually do form a coherent whole. And for every class, whether the exam is fair or not seems like it ought to be an issue for students to discuss — and which should be of particular interest to students thinking of taking the course in the future.

My suggestion a few years ago that students be asked to fill out the class evaluation form immediately after taking the exam met with near-universal derision. Some faculty feared that students who thought they had done badly on the exam might be in a vengeful mood; others thought that students would just be too exhausted at the end of an exam and wouldn’t bother. The suggestion that if the response rate was too low (it’s currently only about 2/3) we could then require that it be turned in before students could get their grades was rejected as too complex administratively.

It doesn’t help matters that we have one of the most poorly designed course evaluation forms I’ve ever seen. The story round the faculty is that this an intentional feature. Supposedly the faculty committee that drafted this (before I turned up) wanted to make a form that revealed as little useful information as possible in order to discourage Deans from using the students’ feedback as an input to salary determinations.

Subsequent Deans, however, have made it clear to us that they read these forms, and that they are important inputs to their decisions on whether our salaries keep pace with, or on occasion, make up lost ground to, inflation.

I used to get really rotten evaluations. For the past few years I’ve gotten superb evaluations. It’s possible I’ve become a much better teacher, although to be honest I sort of doubt it. As far as I can tell, and I admit that I’m not inevitably the best judge, I’m doing pretty much the same things I was doing by my third year in teaching. I do think I made a lot of mistakes in the first two years, mostly assigning and expecting too much, but since then I think I’ve been in a steady state.

What’s changed, I think are these things:

1. I’ve been around long enough that from the student perspective I’ve been there forever. There’s a tendency to beat up on new teachers (and especially women), and once you get out of the hazing period, things go better.
2. I teach more upper-level courses these days, so everyone who takes my course is coming to the nuisance. Word has gotten out that I assign a lot of reading and am fairly demanding, and students self-select. I get good students.
3. A few faculty members have been very kind in puffing my classes to students, and I get cited in some of the readings (or in some cases in the casebooks). I suspect that if the students think they are studying with a national authority, whatever the reality, they are more inclined to be forgiving.
4. Probably the most important change of the years, however, is that students are just generally in a better mood these days. The student body seems to have a more positive vibe than it did, say, five years ago (it also has substantially higher test scores), and a rising tide lifts all the boats.

Of course what I’d really like is constant feedback during the semester. But that would have to anonymous, I think, because most students simply cannot believe that the faculty would not hold negative comments against them. And, human nature being what it is, I’m sure that they’d be right about that in some cases at least.

How Not To Pick Up Women Online

Probably the funniest thing I’ve seen at the State of Play conference was watching a demo yesterday evening. I missed the beginning of it, but by the time I got there, Will Harvey, the Founder and CTO of there.com was logged into his virtual world with an avatar of himself (well, a somewhat more buff version of himself). He was walking around, tryng to get virtual dogs to heel, and chatting up female avatars.

The AI doggies liked the treats, but the avatars were not cooperating. There were people with dune buggies and hovering skateboards who were having fun running down pedestrians (you can’t die in there.com, but the victim flies artistically through the air, or suddenly finds itself face down through the dirt). I found it disorienting, but Will seemed to take it in stride. Will didn’t seem to mind being run over too much, but he got very cross about the person with the paint gun shooting puppies. It was entertaining to watch him pulling down menus, buying a paint gun of his own (probably helps to have an infinite supply of there bucks), and going after the evil-doer.

But most of the demo was spent trying to socialize. Will would strike up a nice conversation with female avatars, and at some point the other player (I’d write “women” but who really knows…) would ask him something about himself. He’d very modestly admit to being the designer of the game, and the conversation was suddenly over. It was clear that the other players didn’t believe him (running into a game designer on a balloon-ridden field in a Virtual World is the game equivalent of meeting Zeus in a coffee shop), and basically figured he was either a liar or a nut. Some of the other players were more polite than others, but all of them had reactions that amounted to “oh, sorry, gotta run.”

Conclusion: six years of development of VR is not the most efficient way to pick up women.

Abandon All Hope Ye Who Quote Here

It’s common for academics to bring early drafts to conferences, and to warn readers that the papers shouldn’t be quoted or cited, and that indeed the author may well change his mind. That said, this author’s note from Dan Hunter and Greg Lastowka on their paper Virtual Crimes is unusually robust:

Important Note: This is a very preliminary draft, reflecting certain unresolved and undisclosed disagreements between the two authors and subject to complete and unequivocal disclaimer by both. We warn you only once that Lord Nagafen WILL STRIKE YOU DEAD if you so much as think about citing this or using this as an account of what we think. Additionally, the authors expressly reserve the right to seek redress against any such offenders by the well-established common law procedures of torture, ordeal, and trial by combat

Virtual Worlds: A Dystopian Thought Intrudes

So I’m sitting here listening to people describing how they are building in all the ugliest features of existing intellectual property (IP) rights into various virtual worlds. The big advance the folks at There.com are touting is not that they’ve decided to use, or impose, a better set of rules but rather that they’ll allow player-designers to claim ownership for the virtual items they design. Of course, to enable and enforce a constellation of intellectual property rights, you need a means of tagging the IP rights status of every virtual item, so they’ve built-in a set of tags that go with every item that identify the IP rights assigned by the item’s creator.

The first obvious question, asked eloquently by Yale’s Yochai Benkler, is why on earth anyone would choose to reproduce (not to mention make more binding) all the most objectionable features of a near-pathological legal system? Why not try to build something that encourages sharing? I think part of the answer is that the colonizers of virtual spaces are doing what colonists usually do: bringing their intellectual baggage with them. Another part of the answer is that some of the designers see the tagging and enforcement of IP as part of their business model - it allows them to have and protect proprietary content, maybe to tax in-game transactions someday, and to have something to offer the owners of external IP rights who might otherwise get litigious. The designers’ answer was that they are enabling the Creative Commons licenses in addition to more traditional options, and that they expect most participants to pick those, so it will all/mostly come out alright in the end.

And then I had a Really Worrying Idea. The discourse here tends to discuss Virtual Worlds as either, 1) important new phenomena in themselves (socially or commercially); or 2) social spaces that may create new relationships that might spill over into the real world.

In the paper Caroline and I wrote, that I’ll be presenting later in the conference, we argue that there’s a third view, that the Virtual Worlds could be used as testbeds for legal rules. But what if our vision is too modest? What if the really significant vew is a fourth view, that the virtual worlds are (unintentional) testbeds for new technologies of tagging and control? After all, in real life people are testing and (secretly) deploying RFID systems that allow them to tag and trace consumer purchases. It’s only a matter of time before it’s technically feasible to track and trace everything we have.

So, now I have a dystopian vision to balance some of the enthusiasm here. Worryingly, I find it more plausible.

Random Notes on 'The State of Play'

I’m not going to blog the conference if only because I don’t type fast enough. And I gather some other people may do so. But I’ll try to post some notes now and then.

Learned: The State of Play conference is a sell-out. In addition to the academic crowd there are lot of people involved in designing the games, or in the constellation of ancillary industries that are springing up around the games (e.g. designing stuff for the avatars, and selling it; or doing things which rely on the games or the game engines, like making movies or staging online art shows).

Learned: The level on enthusiasm among massively multiplayer online game-makers and users is as high as anything you could have found in the early days of the dot-com bubble. “This is our Woodstock” one of them told me earnestly. And the level of idealism is almost as high: many of the people designing games see themselves as enabling self-expression and creating spaces in which new social linkages and new spontaneous forms of bottom-up social organization. But there’s more of the social linkages than social organization.

Learned: In virtual worlds, the aphorism “the clothes make the man” is a lot more true than in real life.

Re-Learned: Game designers worry a lot about not discouraging the customers. This imposes massive constraints on their ability to address resource and skill inflation. And that can hurt the gameplay….

Learned: From the game designer perspective, the player-killers have much more stamina than the folks who try to settle and build something. The barbarians just don’t mind getting killed, and come back again and again (indeed, the barbarians get highly organized, form guilds or factions, and attack and re-attack, until civilization is destroyed). Even when the people who have taken the time to build something and created a community around are able to organize to defend it, they don’t have the staying power: the experience of having to fight all the time to preserve your tavern or your art gallery is juts too wearing on the soul, and eventually they give up.

Re-Learned: The level of legal sophistication among the people who build and code things is basically random. Some of the people doing some of the cutest things are going to have very high legal bills Real Soon Now.

Learned: Some Virtual Worlds are drifting in the direction of being Virtual Malls. There’s probably money in that, but may co-exist uneasily with the idealists.

Travel Notes

There are things I learn from traveling, and things I re-learn.

Learned: MIA — never good at the best of times — has managed to get worse. In order to serve the herding needs of the security services, you now have to walk three times as far to get to low-numbered “C” gates … which is where the flights to NY leave from. It now feels even more like Laguardia at its worst.

Re-Learned: When we’re having lovely weather in Miami, the rest of the country, is having seriously crummy weather. Example: my flight to NY started its decent to JFK, only to abort rather suddenly. Seems the winds were gusting at 70 MPH, which is too much. So we got diverted to Baltimore to re-fuel before trying again.

Re-learned: NY streets are a lot cleaner than the NY of my childhood memories.

Learned: The conference hotel looks out onto the site of the World Trade Center. It’s even more depressing that I would have thought. It feels very odd to look down from the 52nd floor onto the small crowd milling about outside the fence.

Fools and Consistency

“A fooling consistency,” Oliver Wendell Holmes Ralph Waldo Emerson [this should teach me not to blog on the road, but probably won’t] famously wrote, “is the hobgoblin of little minds.” All too often abbreviated to leave out the first two words (which of course imply that much consistency is not at all foolish), the insight captures something deeply true and more than a little unsettling about the evolution of the common law. The common law does change to fit the times and to fit new circumstances. The price of this capacity to mutate is indeed some occasional illogic and some inconsistency with precedent. When things are going well, we at least manage to treat like cases alike for the moment, remaining fully conscious that our ideas of what is “like” and “different” are things we lawyers both construct and soak up from the legal and social cultures we inhabit. And we fight about which sorts of consistency are wise, and which are foolish.

I was thinking about Holmes’s Emerson’s aphorism this morning as I read the news about Washington and Iraq. It seems we need to reverse the aphorism to capture something more than a little true and deeply unsettling about the course of United States foreign policy. I don’t mean the Bush doctrine of US supremacy and unilateralism, which is certainly consistent and arguably foolish. Rather, I mean the Bush policy towards the occupation and reconstruction of Iraq. Having said loudly and often that the US must stay the course, not cut and run, etc. etc., the Administration now shows disturbing signs of what the Brits call ‘wobble’.

Item: The administration has already announced planned troop reductions at a time when violence is increasing, not decreasing.

Item: The administration has announced that Iraqi’s being recruited for policing duties will be given abbreviated training and rushed into service.

Item: Amidst reports that the hand-picked Iraqi Governing Council is corrupt, slow and dysfunctional, the administration has announced that it wishes to transfer responsibility to it more quickly than originally planned.

Item: The CIA reports the US is losing the hearts and minds of (a good chunk of) the Iraqi populace.

Item: Bush poll numbers are slipping at home, especially about the conduct of the war/’peace’.

We thus face the potential that the velociraptor tendency in the foreign policy establishment will take the inconsistent position of declaring victory and running, or at least running down the US/’coalition’ presence, while the opposition, and more liberal, strategists stick to the ‘we broke it, we bought it’ view that whatever the merits of the original intervention (if any), it would be wrong to create an anarchistic political vacuum.

The political problem this creates, of course, is that it sets up an election in which the Democrats can be portrayed, however subliminally, as wearing the millstone of wishing to perpetuate an unpopular occupation, while the Republicans claim they are the party of extrication and victory.

On the one hand, it’s amazing to even imagine that Bush could start a war, abandon it, and then blame Democrtats for opposing it (“McGovernitnes!”) and not supporting his means of ending it. On the other hand, the Dem’s willingness to be ‘tough’ on ‘winning the peace’ may just maybe serve to deflect the McGovernite aspersion.

And, of course, any such Bush strategy puts big hostages to fortune, for if things were to go really badly in Iraq, someone might notice, even after most troops are out and the casualties are down. In particular, a cut and run strategy would be especially vulnerable to a return of Saddam Hussein…which can only put more pressure on those special commando units that have been tasked with finding him.

I do not think that an unwillingness to cut and run is a foolish consistency. But it’s not obvious that even if Holmes’s Emerson’s aphorism speaks to the common law, in this day of sound-bite debate it has as much to say to national politics.

Off to (the State of) Play

Blogging may be light for the next few days, and will certainly be erratic, because I’m off to New York to attend the State of Play conference. There are a bunch of interesting papers online, so it looks like it should be a good event.

I’m mildly amazed at the speed with which the academy can take a social trend and turn it into something that generates scholarship worth reading. Yes, sociologists have been writing stuff about MUDs and MOOs for years, but — to be blunt — as far as I can tell, having looked at piles of it, only a depressingly small fraction of it was neither jargon-ridden nor obvious.

Things changed when the graphics got better, and games went mass-market and commercial. For me at least, the first sign something was up was when Edward Castronova started writing economic analyses of virtual worlds. Next thing you know there’s an explosion of writing about massively multi-player online role-playing games. In fact, there’s a whole virtual community.

Of course, my participation in all this is something of a cheat, since I’m very much the junior author on the paper, more than half the work having been done my co-author Caroline Bradley.

LOTR3 Without Saruman?

Slashdot | Saruman Completely Cut from ‘Return of the King’

Far be it from me to venture into the culture wars, but this is nuts.

White House Caves on 9/11 Documents

Yahoo! News - White House, 9-11 Panel OK Documents Deal.

Basically the White House just caved to the 9-11 investigators on this one in the face of a threat of a subpoena (and falling poll numbers…). The full Commission won’t access the documents—which include the Presidential Daily Brief—instead only a sub-committee (picked by the committee) will get access. That means there’s a fig leaf for the White House. But the sub-committee can share what it learns with the rest of the committee. So it’s a pretty threadbare fig leaf.

The AP story gives one account of what the fuss might have been about (in addition to any administration’s natural institutional reluctance to share intel with investigators), which it says is a year old, but I had never heard before:

The White House confirmed last year that one such report in August 2001, a month before the attacks, mentioned that al-Qaida might try to hijack U.S. passenger planes. National security adviser Condoleezza Rice (news - web sites) has described the report as an analysis, rather than a warning, and said hijacking was mentioned in a traditional sense, not as it was used on Sept. 11.