Yearly Archives: 2009

Sotomayor is Lucky in Her Enemies

Posted on June 18, 2009 by Michael Froomkin

Ed Meese, he of the “Experts Agree” T-Shirt, is back in the news today for his orchestration of the opposition to Sotomayor's Supreme Court nomination.

This news comes on the heels of the first possibly significant blot on her otherwise sterling record: it seems Sotomayor is a member of an all-woman club, the Belizean Grove. This is an issue because the Code of Judicial Conduct bans memberships in groups that practice invidious discrimination. The defense that discrimination by the relatively less powerful against the more powerful is not “invidious” cuts little ice with me. The defense that no men have actually attempted to join is a closer call. It's probably true, so it's technically sufficient. But it's also the same defense used by men-only and whites-only and {fill in the blank}-only clubs for decades, as they sat secure in the knowledge that no one would bother trying given formal or informal rules limiting membership.

So, Ed Meese's intervention comes at a very fortunate time for Sotomayor.

Posted in Law: The Supremes | 6 Comments

Discourse.net Joins the Herald Blog Aggregator

Posted on June 18, 2009 by Michael Froomkin

The Miami Herald has a new south Florida blog aggregator, they call the Community Blog Network and they've listed Discourse.net under Politics and Business.

Why “business”? Apparently, according to the editor who was kind enough to explain it to me, that's where both law and technology are being warehoused until they have enough blogs on those topics to fill their own sections.

For Herald blog readers new to Discourse.net, I should perhaps explain that I'm a professor at the University of Miami School of Law. I write mainly about politics, law, and technology, and sometimes repeat bad jokes. Civil comments are very welcome. You can read my legal articles here. You can read about me here and here.

Posted in Discourse.net | Comments Off on Discourse.net Joins the Herald Blog Aggregator

Regulatory Arbitrage Lives

Posted on June 18, 2009 by Michael Froomkin

Back in 1997 — more than a decade ago — I wrote what may be my most-influential internet law article, The Internet as a Source of Regulatory Arbitrage. Here's the abstract:

The Internet is a transnational communication medium. Once connected, there is little that a single country can do to prevent citizens from communicating with the rest of the world without drastically reducing the economic and intellectual value of the medium. As a result, connection to the Internet enables regulatory arbitrage by which persons can, in certain circumstances, arrange their affairs so that they evade domestic regulations by structuring their communications or transactions to take advantage of foreign regulatory regimes. Regulatory arbitrage reduces the policy flexibility of nations by making certain types of domestic rules difficult to enforce. Citizens with access to the Internet can send and receive anonymous messages regardless of national law; both censorship and information export restrictions become nearly impossible to enforce, although governments have it in their power to impose some impediments to ease of use. The effectiveness of European-style data protection laws is reduced when personal information can be stored in offshore data havens. Ultimately, restrictions on certain types of transaction, e.g., restrictions imposed by securities laws, also may be undermined if these transactions can easily be carried out offshore. However, claims that income tax systems will be seriously undermined are, I argue, vastly overstated, at least in the medium term. On balance, therefore, I predict that the Internet's regulatory arbitrage effects will tend to promote liberal democratic values of openness and freedom more than they will detract from what most consider to be the modern states' legitimate regulatory powers.

In recent years I've started to fret that some of the assumptions on which it was based are not holding up — governments are getting better at blocking and filtering, whether it's the Great Firewall of China, or Saudi Arabia's attempts to crowdsource censorship.

Still, there's clearly some life left in the concept, as seen from this NYT article on how images from Iran are getting out to the internet

Throughout the week, supporters of the protesters around the world had been making their own computers available to Iranians who wanted to evade government censors.

These people have been publishing the IP addresses of their computers to public forums like Twitter — offering them as so-called proxy servers.

We hoped the Internet would be bad for despots; we feared it would be the Panopticon. The race is still on.

Posted in Internet | 1 Comment

Three Key Questions About the Kindle

Posted on June 17, 2009 by Michael Froomkin

It would be cool to have all my work materials on a little platform like the Kindle (or, heck, just on pdf so I didn't have to carry them!). But so far the Kindle doesn't seem for me. Cory Doctorow gets at some of the reasons in Amazon releases some Kindle source-code when he says he can't warm to the Kindle until he understands what he can do with it.

1. Is there anything in the Kindle EULA that prohibits moving your purchased DRM-free Kindle files to a competing device?

2. Is there anything in the Kindle file-format (such as a patent or trade-secret) that would make it illegal to produce a Kindle format-reader or converter for a competing device?

3. What flags are in the DRM-free Kindle format, and can a DRM-free Kindle file have its features revoked after you purchase it?

No one at Amazon will answer these questions. I've asked them of my contact there, a manager who wrote me to tell me about the existence of Amazon's DRM-free option for Kindles, and he hasn't replied to my questions over a period of several months and several re-asks. Then, an O'Reilly exec asked Amazon to clarify this, as O'Reilly is releasing all its books as DRM-free editions for the Kindle, and he, too, has been stonewalled. Then I wrote to their press office, on behalf of the Guardian newspaper, and they didn't even deign to reply with a simple “no comment.” Just radio silence.

Someone should start a betting pool on when we get the answers.

Posted in Sufficiently Advanced Technology | Comments Off on Three Key Questions About the Kindle

Word Hell

Posted on June 17, 2009 by Michael Froomkin

So far, this working vacation is less fun than I had hoped. And the culprit is clear: Microsoft Word.

I am a dyed-in-the-wool WordPerfect guy. I've been using WP since version 4.1. Back in the DOS days, I could practically speak macro language. I made the switch to the windows versions somewhat reluctantly, driven to by the need to import/export to HTML, and stayed for the great integration with PDF. (And I never did get fluent in the new macro language, which needs to be compiled and is ust too fussy.)

I basically only ever use Word when a law journal makes me, and if the program has feelings it knows how I feel about it. A couple of days ago I got the first edited version of my latest article back from the journal. They converted it from WordPerfect to word, which they'd warned me they would do. There's one thing — only one thing — that Word does better than WordPerfect, and that's the “track changes” feature, so I'm reconciled to the idea, at least in principle.

But the practice! All the converted footnotes are in the normal style; when I make a new footnote, they are in “footnote” style — which in this document doesn't have superscripts, full justification, or single-spacing. Messes up everything. (In the last document I worked on, new footnotes came out in four-point type. I have no idea why, and the help desk couldn't fix it.) Similarly, when I drop in inserts from other documents, the formatting in the notes goes all funny. I know there's supposed to be a way to copy formatting from one place to another, with a little paint brush icon, but it only seems to work erratically for me.

And then there's the way the cursor jumps about, the constant opening of new windows (e.g. to read a comment) that must be dragged to be closed, and the general frustration of expectatoins built up over many years.

Switching costs are not a myth.

Posted in Software | 7 Comments

A Working Vacation

Posted on June 16, 2009 by Michael Froomkin

After a couple of stops along the way, we reached our vacation destination, a rented abode where we plan to stay for four weeks, a period that will include a significant wedding anniversary.

It's not all beer and skittles (“what,” I hear Tom Lehrer saying, “is a skittle anyway?”): we brought a considerable amount of work with us. The theory is that pleasant and cooler surroundings, the absence of distractions, will be conducive, and we can reward ourselves with walks and the occasional adventure. We'll see.

I do hope to have a few things to say about law teaching in a week or two, once I get done writing my early-term lectures. And after the shock of relaxation works off, I may get back to firehose newsreading. But meanwhile, I'm sitting out the issues of the day such as whether progressives manage to block the supplemental war appropriation for its failure to include an Iraq withdrawal timetable and the Obama administration's continuing flight from transparency.

Posted in Personal | 9 Comments