Author Archives: Michael Froomkin

The Scariest Moments in Law Teaching

Jay Wexler suggests that The Scariest Moment of any Class Meeting “is always the very first one”.

That's absolutely not my experience — the moment before the first class, open with infinite possibility, is anything but scary. Exciting and hopeful, yes. The only sour note is if any of the students seem scared — I hate that, as I want the freedom to push them to be rigorous and feel constrained in doing that if I am finding that they experience it as scary as opposed to educational. (Now, the second class, after everyone runs away…) And, kidding aside, the same is true more generally of every class — I'm always psyched to get going at the start, to the point where I often forget about any admnistrivia and announcements because my mind is on the substance. Conversely, I am usually loath to stop, as I have so much more I'd love to say…

No, for me the fourth-scariest moment in law teaching is the pre-exam review session, when students come in with their (sometimes surprisingly picky) questions — the one time in the semester I don't have my security blanket of notes in case my mind goes blank. It hasn't yet, but what if it did?

The third-scariest moment is right after I send in my grades. How will the students who did poorly react? So far the worst experience has been with the ones who come to my office and cry, which can be very wrenching. But in the past I've also had someone (a visiting student; I trust ours would know better) call me at home and harangue me to change a grade (which our rules forbid). I even had one person, long ago, come to my office and threaten me — not, I hasten to add, with physical harm, but with an implausible claim that I'd suffer professional retaliation because the one of the student's relatives was Very Important.

And the second-scariest moment is just before I send in my exam. Exam design is very difficult, and I continually wish I could find someone to train me in it. There are so many ways things can go wrong: creation of unintentional distractions; writing questions that are too easy or too hard; writing questions destined to produce results that are hard to grade (either because there are too many minor issues or because the students all fixate on too few); and, most likely, writing questions that produce answers that are basically all alike and hence very very boring to read.

But the very scariest moment — without question — is that moment right before I open the blue books. What if I did a bad job and they didn't learn anything?

So unlike Jay Wexler, for me, all the scariest stuff is at the end.

That would be … right about now.

Posted in Law School | 1 Comment

Beer Blogging: Expedition Stout


Bell's Expedition Stout.

It's very good if you like the strong (tasting) stuff. It's also unusually thick. And very very low in fizz, which is fine with me but I suppose might bother some purists.

Apparently it's only available in winter, and in eleven oddly non-contiguous states: I defy anyone to figure out the pattern in FL, IN, KY, MI, MN, MO, NC, ND, OH, PA, VA, WI.

It's also on the expensive side, although no worse than 60-minute Dogfish IPA.

Then again, at 10.5% alcohol I'm only going to have one at a sitting if I plan to stay awake.

The back label suggests that “it's perfectly content to sit quietly in your cellar, aging and improving.” Well, fat chance of that. And not just because homes in South Florida don't have basements.

Previous beer blogging:

Posted in Food and Drink | 4 Comments

Judge Walker’s Probing Questions in Telco Immunity Case

Late yesterday Judge Walker issued an order listing 11 questions for both sides to be prepared to answer at today's hearing in the telecoms immunity hearing being held at this moment in San Fransisco. (The case is more formally known as “In re National Security Agency Telecommunications Records Litigation, Mdl No. 1791.”)

These are really good questions — and they don't suggest this is going to be an easy day for either side, but especially for the government.

I would have loved to be there; will be very interesting to hear how it went.

(Previous post: EFF Fighting the Good Fight on Wiretap Case Immunity)

Posted in Civil Liberties | Comments Off on Judge Walker’s Probing Questions in Telco Immunity Case

Won’t Be Missed

Florida Senator and national embarrassment Mel Martinez To Retire.

Should be quite a race to succeed him in both parties. I look forward to the blogger outreach….

Posted in Florida | 1 Comment

Identity Cards and Identity Romanticism

I just posted Identity Cards and Identity Romanticism to SSRN. A slightly modified version will appear as a chapter in Ian Kerr's edited collection “Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society” (New York: Oxford University Press, 2009).

Here's the abstract:

This book chapter for “Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society” (New York: Oxford University Press, 2009) — a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr — discusses the sources of hostility to National ID Cards in common law countries. It traces that hostility in the United States to a romantic vision of free movement and in England to an equally romantic vision of the 'rights of Englishmen'.

Governments in the United Kingdom, United States, Australia, and other countries are responding to perceived security threats by introducing various forms of mandatory or nearly mandatory domestic civilian national identity documents. This chapter argues that these ID cards pose threats to privacy and freedom, especially in countries without strong data protection rules. The threats created by weak data protection in these new identification schemes differ significantly from previous threats, making the romantic vision a poor basis from which to critique (highly flawed) contemporary proposals.

Although the length limits for the book made me cut the paper in half from its original size, I enjoyed working on the project; there are some real issues here and I don't think I've gotten to the bottom of them yet.

ID cards remain one of my main scholarly interests at present, and I expect to write much more about them. I would blog more about it, but I haven't figured out how to blog about my works in progress without the blog time cutting into work time. I find if I blog about non-work stuff it feels like a break; it's my hobby, it's a conversation (or howling into the wind, as the case may be). If I blog about work stuff, I feel a greater need to be scholarly and precise, it takes a long time, and it ends up sucking energy from what I see as my main job.

Posted in ID Cards and Identification | 5 Comments

Abbreviated Survey of US Anonymity Law

Over the weekend, I posted drafts of two chapters I wrote for a forthcoming book on anonymity and privacy around the world. Here's the back story on Anonymity and the Law in the United States.

I had originally agreed to write one piece — Identity Cards and Identity Romanticism — and then the book's editor, the incomparably wonderful Ian Kerr, asked me to write a survey of US law on anonymity. I thought it would be do-able, and I very much wanted to repay Ian for all his many kindnesses over the years.

But it wasn't easy. The problem wasn't so much that the US law in the area is chaotic, I'm used to that. Nor was it mainly that (after I'd agreed) they sent me an outline of the topic they hoped I would cover, a list which went well outside my comfort zone into areas like criminal procedure and juries, because I'm up for learning new things. No, the problem was the @#$@# word limit. I had to compress everything into tiny little spaces. I hated doing that. I found it excruciating, in fact. And it results in generalizations which while not, I hope, erroneous are on occasion not as precise as I'd ideally like.

Anonymity and the Law in the United States

This book chapter for “Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society” (New York: Oxford University Press, 2009) — a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr — surveys the patchwork of U.S. laws regulating anonymity and concludes the overall U.S. policy towards anonymity remains primarily situational, largely reactive, and slowly evolving.

Anonymous speech, particularly on political or religious matters, enjoys a privileged position under the U.S. Constitution. Regulation of anonymous speech requires a particularly strong justification to survive judicial review but no form of speech is completely immune from regulation. Anonymity is presumptively disfavored for witnesses, defendants, and jurors during criminal trials; the regulation of anonymity in civil cases is more complex. Plaintiffs demonstrating sufficiently good cause may proceed anonymously; conversely, defendants with legitimate reasons may be able to shield their identities from discovery.

Despite growing public concern about privacy issues, the United States federal government has developed a number of post 9/11 initiatives designed to limit the scope of anonymous behavior and communication. Even so, the background norm that the government should not be able to compel individuals to reveal their identity without real cause retains force. On the other hand, legislatures and regulators seem reluctant to intervene to protect privacy, much less anonymity, from what are seen as market forces. Although the law imposes few if any legal obstacles to the domestic use of privacy-enhancing technology such as encryption it also requires little more than truth in advertising for most privacy destroying technologies.

I do think there's some value to a survey like this, especially in a collection where it will appear right next to similar surveys from lawyers in other countries. So I'm not sorry to have done it. But it's a little more of a laundry list than my usual work.

Posted in Law: Privacy | Comments Off on Abbreviated Survey of US Anonymity Law