Brian Tamanaha on Problems with Instrumental Views of the Law

Daniel Solove
Founder of TeachPrivacy

Legal Instrumentalism

Brian Tamanaha (law, St. John’s), has written a provocative article called The Perils of Pervasive Legal Instrumenalism.  He observes that “[a]n instrumental view of law–the idea that law is an instrument to achieve ends–is taken for granted in the United States, almost a part of the air we breathe.”  Such a view, however, creates a serious problem:

[I]n situations of sharp disagreement over the social good, if law is perceived as an instrument, individuals and groups within society will endeavor to seize the law, and fill in, interpret, and apply the law, to serve their own ends. What results is a contest over law itself, a contest in which all sides seek to enlist the power of law on their behalf, spawning a Hobbsean conflict of all against all carried on within and through the legal order.

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Abolish the Bar Exam

Daniel Solove
Founder of TeachPrivacy

Abolish the Bar Exam

Despite my enjoyment of the Bar Exam as a work of jurisprudence, I believe that the Bar Exam should be abolished.  It prevents mobility among lawyers, making it cumbersome and time consuming to move to different states.  It does not test on actual law used in legal practice, but on esoteric legal rules, many of which are obsolete, and most of which are of absolutely no value to a practicing attorney or to anyone for that matter.  In short, the Bar Exam is an unproductive waste of time.

My guess is most all lawyers would agree. So why does the Bar Exam persist?

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How Credit Reporting Agencies Are Scamming the Free Credit Report Requirement

Daniel Solove
Founder of TeachPrivacy

Free Credit Report

This year, pursuant to the Fair and Accurate Credit Transactions Act (FACTA) of 2003, credit reporting agencies must provide people with one free credit report per year.   This is gradually being phased in this year.  People can obtain their reports from this website: https://www.annualcreditreport.com/cra/index.jsp.

Earlier this year in his blog, law professor Eric Goldman discussed the difficulties and inconveniences he experienced when attempting to obtain his report.

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Blogging Can Get You Sued: Privacy Tort Suit Against Washingtonienne Blog

Daniel Solove
Founder of TeachPrivacy

Washingtonienne - Jessica Cutler Washington Post Magazine Cover

Back in the summer of 2004, a clerk on Capitol Hill blogged about her sexual exploits on a blog called Washingtonienne.  A very interesting article in the Washington Post Magazine describes what happened:

The instant message blinked on the computer at Jessica Cutler’s desk in the Russell Senate Office Building. “Oh my God, you’re famous.” Before she could form the thought — “famous, cool” — or puzzle how she, a lowly mail clerk, had escaped obscurity, a second instant message popped up on her screen. Startled, Jessica recalls, she began to curse.

“Your blog is on Wonkette,” the message said.

Jessica’s blog (short for “Web log”) was the online diary she had been posting anonymously to amuse herself and her closest girlfriends. In it, she detailed the peccadilloes of the men she said were her six current sexual partners, including a married Bush administration official who met her in hotel rooms and gave her envelopes of cash; a senator’s staff member who helped hire her, then later bedded her; and another man who liked to spank and be spanked.

Wonkette is a popular online gossip column that was read by lots of Jessica’s friends and Capitol Hill co-workers, including some of the men in her blog.

The messages warning Jessica that her private little joke had just gone very public came from a girlfriend over on the House side. . . .

Typing and clicking her mouse at a desperate pace, Jessica logged on to blogger.com, the electronic bulletin board where she’d posted her sexploits under the pseudonym Washingtonienne, and deleted her blog, hoping she’d blown her diary into oblivion.

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Security, Privacy, and Shark Bites

Daniel Solove
Founder of TeachPrivacy

Security, Privacy, and Shark Bites

Recent discussions regarding the Real ID Act follow the same general path as many discussions about the trade-offs between security and privacy.  These discussions typically begin with taking a security proposal and then weighing it against its costs to privacy and civil liberties.  What is often not done, however, is to put the security proposal through meaningful scrutiny as an effective security measure.  Instead, it is often assumed that the security measure is worthwhile, and the only question is whether it is worth the trade-off in privacy and civil liberties.

But what if security measures against terrorism were examined with a more critical eye?  I believe that the risk of terrorism is not being assessed in a rational way and is receiving a disproportionate amount of resources.  This can have grave consequences, probably resulting in significantly more loss of life than a major terrorist attack.

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The Multistate Bar Exam as a Theory of Law

Daniel Solove
Founder of TeachPrivacy

Bar Exam

What is the most widely read work of jurisprudence by those in the legal system?  Is it H.L.A. Hart’s The Concept of Law?  Ronald Dworkin’s Law’s Empire?  No . . . it’s actually the Multistate Bar Exam.

Almost all lawyers have read it.  Although the precise text is different every year, the Bar exam presents a jurisprudence that transcends the specific language of its text.  Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law.  It therefore comes as a great surprise that the Bar exam has received such scant scholarly attention.

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Teaching Information Privacy Law

Daniel Solove
Founder of TeachPrivacy

Information Privacy Law Course

Since this blog is read by many new law profs, I thought I’d recommend information privacy law as a course you might consider teaching.  (I have a casebook in the field, so this is really a thinly-disguised self-plug.)  Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools.  I’m hoping to change all that.  So if you’re interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

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How Private is Our Email? Councilman’s unfinished business

Daniel Solove
Founder of TeachPrivacy

Privacy of Email - Councilman

In United States v. Councilman, a 1st Circuit panel held that email intercepted contemporaneously with its transmission did not fall under the protections of the Wiretap Act.  The case went en banc and an opinion has yet to issue.  Orin Kerr at the VC just wrote a post about recent developments about the issue.   He writes:

Congress has introduced a number of statutory amendments to try to settle the matter. The best was introduced on April 28: Senator Leahy introduced S. 936, the E-Mail Privacy Act of 2005, which is a very short and sweet solution. The Leahy bill adds just a few words to the definition of “intercept” under the Wiretap Act to make its already implicit temporal scope textually explicit. It’s an elegant and correct amendment.

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Information Privacy and the States

Daniel Solove
Founder of TeachPrivacy

Privacy Law and the States

There’s been a ton of media exposure about security breaches at major companies.   Most recently, Time Warner admitted it lost data on 600,000 current and former employees.  Bank of America Lost data on over 1 million people.  ChoicePoint sold personal information on about 145,000 people to identity thieves.  And Lexis Nexis had data on about 310,000 people improperly accessed.  USA Today adds it all up and concludes:

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