The business model for many online companies — Facebook, Google, and Pinterest are prime examples — does not involve a direct economic transaction with users. Rather companies entice consumers to provide personal information in exchange for access to free services. Although consumers, privacy advocates, scholars, and these companies may assume that the government can regulate the companies' advertising and compel the posting of a privacy policy, the current test for commercial speech only encompasses speech that proposes a direct economic transaction. This Article examines alternate formulations of a commercial speech test that would cover the speech of companies favoring indirect business models that "sell against" the personal information of those availing themselves of free products.
{"title":"Where the Consumer is the Commodity: The Difficulty with the Current Definition of Commercial Speech","authors":"E. Bernstein, Theresa J. Lee","doi":"10.2139/SSRN.2019270","DOIUrl":"https://doi.org/10.2139/SSRN.2019270","url":null,"abstract":"The business model for many online companies — Facebook, Google, and Pinterest are prime examples — does not involve a direct economic transaction with users. Rather companies entice consumers to provide personal information in exchange for access to free services. Although consumers, privacy advocates, scholars, and these companies may assume that the government can regulate the companies' advertising and compel the posting of a privacy policy, the current test for commercial speech only encompasses speech that proposes a direct economic transaction. This Article examines alternate formulations of a commercial speech test that would cover the speech of companies favoring indirect business models that \"sell against\" the personal information of those availing themselves of free products.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"39 1","pages":"39"},"PeriodicalIF":0.0,"publicationDate":"2012-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84437559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay discusses the potential impacts of the narratives that lawyers, law student, legal educators, and others use to define what it means to be part of the legal profession on the lawyer's traditional role as a conservator of the rule of law and other legal institutions. While cultural narratives about the law have always included legal mythologies of long hours, difficult partners and clients, and the dedication required to practice law, more recent narratives such as legal “scamblogs," and oral traditions among students seem to signal a marked shift to failure stories based in despondency, despair, and anger. Whether these recent narratives will dominate the culture of lawyering remains to be seen, but the proliferation of these types of stories potentially threatens the willingness of current and future lawyers to participate in a rule of law system that appears to cheat them of both their careers and their future happiness.
{"title":"Cultural Narratives of the Legal Profession: Law School, Scamblogs, Hopelessness and the Rule of Law","authors":"Daniel D. Barnhizer","doi":"10.2139/SSRN.2004597","DOIUrl":"https://doi.org/10.2139/SSRN.2004597","url":null,"abstract":"This essay discusses the potential impacts of the narratives that lawyers, law student, legal educators, and others use to define what it means to be part of the legal profession on the lawyer's traditional role as a conservator of the rule of law and other legal institutions. While cultural narratives about the law have always included legal mythologies of long hours, difficult partners and clients, and the dedication required to practice law, more recent narratives such as legal “scamblogs,\" and oral traditions among students seem to signal a marked shift to failure stories based in despondency, despair, and anger. Whether these recent narratives will dominate the culture of lawyering remains to be seen, but the proliferation of these types of stories potentially threatens the willingness of current and future lawyers to participate in a rule of law system that appears to cheat them of both their careers and their future happiness.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"17 1","pages":"663"},"PeriodicalIF":0.0,"publicationDate":"2012-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81901179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Conventional wisdom holds that the Roberts Court’s recent First Amendment decisions have created a crisis for the 22 states that use contested elections to select the members of their state judiciaries. As Justice Sandra Day O’Connor, who has become a leading critic of judicial elections since retiring from the Supreme Court, has stated, “[l]eft unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.” Accordingly, to preserve the independence and integrity of their judiciaries, critics contend that states should adopt the “Missouri Plan” (or some similar form of merit selection) to take the money, and therefore the “politics,” out of judicial selection. This paper contends that the conventional wisdom is wrong — there is no crisis regarding the independence of state judiciaries, and judicial elections, in conjunction with the Roberts Court’s recent decisions, actually promote the independence, accountability, and quality of state court judges. As a result, states need not — and should not — feel compelled to adopt or retain so-called Missouri Plans. Contrary to the conventional wisdom of Justice O’Connor and others, these “merit-based” appointment systems have failed to provide the politics-free judiciary that their advocates promised. In fact, this year 26 states are considering legislation to change or replace their judicial merit selection systems. Thus, this paper concludes that, while there may be no perfect way to select judges, judicial elections ensure that the judiciary remains independent of the other branches of government and that judges remain directly accountable to the people, providing the only meaningful check on the not-so-least dangerous branch.
传统观点认为，罗伯茨法院最近对第一修正案的裁决给22个州造成了危机，这些州使用竞争性选举来选择州司法机构的成员。正如桑德拉·戴·奥康纳大法官(Sandra Day O 'Connor)所说的那样，她从最高法院退休后成为司法选举的主要批评者，“如果不加以解决，正义被出卖的观念将破坏法院本应维护的法治。”因此，为了保持司法机构的独立性和完整性，批评者主张各州应该采用“密苏里计划”(或类似形式的择优选拔)，从司法选拔中剔除金钱，从而剔除“政治”。本文认为，传统观念是错误的——国家司法机构的独立性不存在危机，司法选举与罗伯茨法院最近的判决相结合，实际上促进了州法院法官的独立性、问责制和质量。因此，各州不必——也不应该——感到被迫采用或保留所谓的“密苏里计划”。与奥康纳法官和其他人的传统智慧相反，这些“择优”任命制度未能提供其倡导者所承诺的无政治的司法。事实上，今年有26个州正在考虑立法改变或取代他们的司法选拔制度。因此，本文得出的结论是，虽然可能没有完美的方式来选择法官，但司法选举确保了司法机构独立于政府的其他部门，法官仍然直接对人民负责，为不那么危险的部门提供了唯一有意义的检查。
{"title":"Unconventional Wisdom: The Roberts Court's Proper Support of Judicial Elections","authors":"S. W. Gaylord","doi":"10.2139/SSRN.1943642","DOIUrl":"https://doi.org/10.2139/SSRN.1943642","url":null,"abstract":"Conventional wisdom holds that the Roberts Court’s recent First Amendment decisions have created a crisis for the 22 states that use contested elections to select the members of their state judiciaries. As Justice Sandra Day O’Connor, who has become a leading critic of judicial elections since retiring from the Supreme Court, has stated, “[l]eft unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.” Accordingly, to preserve the independence and integrity of their judiciaries, critics contend that states should adopt the “Missouri Plan” (or some similar form of merit selection) to take the money, and therefore the “politics,” out of judicial selection. This paper contends that the conventional wisdom is wrong — there is no crisis regarding the independence of state judiciaries, and judicial elections, in conjunction with the Roberts Court’s recent decisions, actually promote the independence, accountability, and quality of state court judges. As a result, states need not — and should not — feel compelled to adopt or retain so-called Missouri Plans. Contrary to the conventional wisdom of Justice O’Connor and others, these “merit-based” appointment systems have failed to provide the politics-free judiciary that their advocates promised. In fact, this year 26 states are considering legislation to change or replace their judicial merit selection systems. Thus, this paper concludes that, while there may be no perfect way to select judges, judicial elections ensure that the judiciary remains independent of the other branches of government and that judges remain directly accountable to the people, providing the only meaningful check on the not-so-least dangerous branch.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"16 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85642687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Professors Adam Candeub and Mae Kuykendall, in Modernizing Mar-riage, present a groundbreaking argument for “E-marriage” or electronic marriage as an alternative to traditional marriage practice, where both par-ties must be physically present within the state before a marriage becomes official. Under an E-marriage regime, a state would use today’s technology to make its marriage laws accessible to those outside of the state’s physical boundaries. These procedures could preserve some of the traditional ele-ments of a marriage ceremony (e.g. exchanging vows) by allowing couples to marry via videoconference or by creating an Internet virtual presence. The purpose of this essay is to present an argument as to why this kind of E-marriage regime would be particularly beneficial for American service members.
{"title":"E-Marriage and the Military","authors":"M. Bedi","doi":"10.2139/SSRN.1968749","DOIUrl":"https://doi.org/10.2139/SSRN.1968749","url":null,"abstract":"Professors Adam Candeub and Mae Kuykendall, in Modernizing Mar-riage, present a groundbreaking argument for “E-marriage” or electronic marriage as an alternative to traditional marriage practice, where both par-ties must be physically present within the state before a marriage becomes official. Under an E-marriage regime, a state would use today’s technology to make its marriage laws accessible to those outside of the state’s physical boundaries. These procedures could preserve some of the traditional ele-ments of a marriage ceremony (e.g. exchanging vows) by allowing couples to marry via videoconference or by creating an Internet virtual presence. The purpose of this essay is to present an argument as to why this kind of E-marriage regime would be particularly beneficial for American service members.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"322 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77281049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Both law professors and economists are discussing deregulation of the American legal profession, often without consulting each other. This symposium essay reviews the book length deregulation argument entitled First Thing We Do, Let’s Deregulate All the Lawyers. The essay argues that Let’s Deregulate is a tremendous addition to the literature: it disregards laws various professional shibboleths and offers a crisp and persuasive argument that the current barriers to entry are very, very costly to law students, clients, and society at large. Let’s Deregulate estimates the 2004 lawyers’ earning premium at $64 billion. The estimation is high, but well supported. Even if the absolute figure is rejected, the finding that barriers to entry have raised lawyer salaries is patent and inescapable.There are two notable weaknesses to Let’s Deregulate, however. First, while the supply side argument (entry barriers result in fewer lawyers, reduced competition, and higher prices) is outstanding, the demand side argument is much less persuasive. Let’s Deregulate asserts that a raft of recent laws and regulations (including various environmental, class action, consumer protection and intellectual property laws) are inefficient and more costly than beneficial. This claim is difficult enough to prove empirically, but Let’s Deregulate piles on by claiming that the legal profession has been a prime mover in the creation of these laws. These two claims add an unnecessary degree of controversy and difficulty to an already unlikely mission. Critics of deregulation can thus characterize the entire effort as a politically motivated assault on disliked law, rather than an even-handed attempt to quantify the costs and benefits of lawyer regulation.Second, and more understandably, Let’s Deregulate misses some of the unique nuances of the market for lawyers. For instance, it suggests that state legislatures control lawyer regulation, and state supreme courts actually do. This is a critical distinction for any reform effort. The analysis also treats the market for lawyers as a monolith, and there is much evidence that there are two private markets for legal services: big law firms who compete internationally for large scale corporate work and everybody else – small firms and solo practitioners working for smaller businesses and individuals. Despite the critiques, the essay concludes that Let’s Deregulate is a tremendous addition to the literature and encourages more lawyer/economist cross-pollination on the topic.
{"title":"Economists on Deregulation of the American Legal Profession: Praise and Critique","authors":"Benjamin H. Barton","doi":"10.2139/SSRN.2008942","DOIUrl":"https://doi.org/10.2139/SSRN.2008942","url":null,"abstract":"Both law professors and economists are discussing deregulation of the American legal profession, often without consulting each other. This symposium essay reviews the book length deregulation argument entitled First Thing We Do, Let’s Deregulate All the Lawyers. The essay argues that Let’s Deregulate is a tremendous addition to the literature: it disregards laws various professional shibboleths and offers a crisp and persuasive argument that the current barriers to entry are very, very costly to law students, clients, and society at large. Let’s Deregulate estimates the 2004 lawyers’ earning premium at $64 billion. The estimation is high, but well supported. Even if the absolute figure is rejected, the finding that barriers to entry have raised lawyer salaries is patent and inescapable.There are two notable weaknesses to Let’s Deregulate, however. First, while the supply side argument (entry barriers result in fewer lawyers, reduced competition, and higher prices) is outstanding, the demand side argument is much less persuasive. Let’s Deregulate asserts that a raft of recent laws and regulations (including various environmental, class action, consumer protection and intellectual property laws) are inefficient and more costly than beneficial. This claim is difficult enough to prove empirically, but Let’s Deregulate piles on by claiming that the legal profession has been a prime mover in the creation of these laws. These two claims add an unnecessary degree of controversy and difficulty to an already unlikely mission. Critics of deregulation can thus characterize the entire effort as a politically motivated assault on disliked law, rather than an even-handed attempt to quantify the costs and benefits of lawyer regulation.Second, and more understandably, Let’s Deregulate misses some of the unique nuances of the market for lawyers. For instance, it suggests that state legislatures control lawyer regulation, and state supreme courts actually do. This is a critical distinction for any reform effort. The analysis also treats the market for lawyers as a monolith, and there is much evidence that there are two private markets for legal services: big law firms who compete internationally for large scale corporate work and everybody else – small firms and solo practitioners working for smaller businesses and individuals. Despite the critiques, the essay concludes that Let’s Deregulate is a tremendous addition to the literature and encourages more lawyer/economist cross-pollination on the topic.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"189 1","pages":"493"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72778756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
American law schools are an integral part of a vertically integrated system of production in which the end product is lawyers. Law schools are having rapidly increasing problems “selling” their “products” to potential employers/purchasers. Even if the law schools do not voluntarily cut back on the numbers of admitted students some states will decide there should be no public subsidy for educating students for employment areas such as law where there is no demand. Even though many private law schools will be affected negatively, publicly-funded law schools will also be dramatically affected due to declining state budgets and competition for scarce resources from areas of public expenditure with far more powerful lobbying support and, in fairness, greater and more demonstrable and immediate needs. For publicly funded law schools there is significant danger in the fact that there is no shortage of lawyers in America after decades of rapid expansion. Several potential shifts in ABA accreditation standards and policy will have significant implications, including approval of credit for distance learning, rapid movement toward assessment of law schools based on what are called “output” measurements, and even a decision that scholarly productivity measures are an inappropriate factor for the American Bar Association (contrasted with the AALS) to rely on in assessing the accredited status of a law school. These three accreditation prongs will have enormous effects that include significant faculty reductions, higher faculty workloads, changes in tenure standards, and large-scale eliminations of the traditional law school research library. For the (many) law schools that choose to remain oblivious to the altered operational context, their adaptations will be ones developed in a crisis context as their applicant pools shrink, angry graduates are increasingly unable to find employment even while faced with educational debt equivalent to a home mortgage, and less expensive competitive institutions emerge that offer alternative approaches to legal education.
{"title":"Redesigning the American Law School","authors":"David R. Barnhizer","doi":"10.2139/SSRN.1516468","DOIUrl":"https://doi.org/10.2139/SSRN.1516468","url":null,"abstract":"American law schools are an integral part of a vertically integrated system of production in which the end product is lawyers. Law schools are having rapidly increasing problems “selling” their “products” to potential employers/purchasers. Even if the law schools do not voluntarily cut back on the numbers of admitted students some states will decide there should be no public subsidy for educating students for employment areas such as law where there is no demand. Even though many private law schools will be affected negatively, publicly-funded law schools will also be dramatically affected due to declining state budgets and competition for scarce resources from areas of public expenditure with far more powerful lobbying support and, in fairness, greater and more demonstrable and immediate needs. For publicly funded law schools there is significant danger in the fact that there is no shortage of lawyers in America after decades of rapid expansion. Several potential shifts in ABA accreditation standards and policy will have significant implications, including approval of credit for distance learning, rapid movement toward assessment of law schools based on what are called “output” measurements, and even a decision that scholarly productivity measures are an inappropriate factor for the American Bar Association (contrasted with the AALS) to rely on in assessing the accredited status of a law school. These three accreditation prongs will have enormous effects that include significant faculty reductions, higher faculty workloads, changes in tenure standards, and large-scale eliminations of the traditional law school research library. For the (many) law schools that choose to remain oblivious to the altered operational context, their adaptations will be ones developed in a crisis context as their applicant pools shrink, angry graduates are increasingly unable to find employment even while faced with educational debt equivalent to a home mortgage, and less expensive competitive institutions emerge that offer alternative approaches to legal education.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"15 1","pages":"249"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81241666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Federal and state statutory and regulatory protections do not appear to be the answer to preventing the calamity ongoing in the waters of the Great Lakes. To fill in the gap, environmental advocates and scholars devote much of their attentions to the public trust doctrine, first articulated in this context by Joseph Sax. There is little attention devoted to the insights of Indian tribes or the potential legal benefits of invoking Indian treaty rights. The Supreme Court has long affirmed the supremacy of Indian treaty provisions and, while the Court's interpretation of some treaties has been cramped at best, the Great Lakes and Pacific Northwest treaties have been interpreted in a manner that suggests there is room to provide for protection of major water bodies. We propose to incorporate Indian treaty jurisprudence into the strategy for saving the Great Lakes. The interests of the parties tend to be the same - the preservation of the resource. Indian treaties negotiated by Indian peoples that relied on water as a means of survival - economic, cultural, and political - provide a potential (and as yet untested) legal tool for the preservation of major water bodies such as the Great Lakes.
{"title":"Indian Treaties and the Survival of the Great Lakes","authors":"Wenona T. Singel, M. Fletcher","doi":"10.2139/SSRN.955715","DOIUrl":"https://doi.org/10.2139/SSRN.955715","url":null,"abstract":"Federal and state statutory and regulatory protections do not appear to be the answer to preventing the calamity ongoing in the waters of the Great Lakes. To fill in the gap, environmental advocates and scholars devote much of their attentions to the public trust doctrine, first articulated in this context by Joseph Sax. There is little attention devoted to the insights of Indian tribes or the potential legal benefits of invoking Indian treaty rights. The Supreme Court has long affirmed the supremacy of Indian treaty provisions and, while the Court's interpretation of some treaties has been cramped at best, the Great Lakes and Pacific Northwest treaties have been interpreted in a manner that suggests there is room to provide for protection of major water bodies. We propose to incorporate Indian treaty jurisprudence into the strategy for saving the Great Lakes. The interests of the parties tend to be the same - the preservation of the resource. Indian treaties negotiated by Indian peoples that relied on water as a means of survival - economic, cultural, and political - provide a potential (and as yet untested) legal tool for the preservation of major water bodies such as the Great Lakes.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"48 1","pages":"1285"},"PeriodicalIF":0.0,"publicationDate":"2006-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88418483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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