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A photograph taken by Walker Evans is worth more—both in the market and in the eyes of critics—than a virtually identical photograph taken by an unknown artist, just as a handbag bearing the name Prada is worth more—both in the market and in the eyes of those who place social value on such goods—than a work of similar craftsmanship by an unknown manufacturer. In both cases, audiences are potentially responding to a number of factors: aesthetics, critical reception, reputational value, and the status conferred by scarcity.

Part of what enables audiences to evaluate these factors is a belief that the object has the genealogy it purports to have. We term this information state “authenticity,” a characterization that is capacious enough to embrace a number of modes of production. An authentic Warhol might have involved the work of several assistants, all making visible the concept formerly existing only in Warhol’s mind; an authentic designer bag might involve a certain amount of outsourcing to overseas fabricators. A Sol LeWitt wall is the physical manifestation of a two-part work: the directions to accomplish LeWitt’s conception in each new space and a certificate of authenticity. The certificate of authenticity is key to the work’s existence; without it, as a lawsuit once claimed, the work essentially ceases to exist. Authenticity can even, in some instances, certify falseness, as when the U.S. Postal Inspection Service seized and then auctioned off 12,000 fake Salvador Dali works in 1995. When asked why a buyer would pay $4,000 for a known fake, the curator of the Salvador Dali Museum mused that the notoriety that the works had garnered as “authorized fake Dalis” upped the price buyers were willing to pay.

Given the role that authenticity plays in the art market in particular, Amy Adler contends that copyright law is beside the point. Continue reading "Copyright and the Single Work"

The post Copyright and the Single Work appeared first on Jotwell.

[We have the following CFP.  Please note: the deadline is January 20, 2019, midnight EST.]

Autonomy in Private Law: Past, Present, Future.  Organization: The Private Law Junior Scholars Conference.  June 19-20, 2019, Tel Aviv University Faculty of Law, Safra Center for Ethics.  @PLJS_conference

The Private Law Junior Scholars Conference is a collaboration between the law faculties of the University of Toronto and Tel Aviv University. It aims to create a forum for junior researchers from around the world to exchange about private law and different aspects of private law scholarship. The conference provides a select number of doctoral candidates, post-doctoral researchers and junior faculty (pre-tenure) with a unique opportunity to present their work and receive meaningful feedback from senior faculty members and peers. Last year’s conference, themed ‘Public Aspects of Private Law’, received 70 submissions. A total of seven presentations were selected by the organizers and leading private law scholars from the universities of Tel Aviv, Toronto and Yale, which included Hanoch Dagan, Avihay Dorfman, Larissa Katz, Daniel Markovits, Ariel Porat, and Arthur Ripstein.

This Year’s Topic: Autonomy in Private Law: Past, Present, Future  .Autonomy has long stood as the central pillar of conventional scholarship in private law. Much of private law, as depicted in these accounts, is built around the ideal-typical vision of autonomous agents as the relevant legal subjects, and frequently, private law is also claimed to realize and enhance autonomy. The assumption of the existence and desirability of autonomous agents and agency appears to be shared by widely diverging approaches to private law.

Private law’s autonomy-paradigm is, however, increasingly challenged by alternative theoretical accounts of the field that identify freedom as private law’s central pillar, and/or stress the relational dimension of private law. Additional challenges emanate from societal and technological developments that create new areas of power imbalances. At the same time, precisely because of its perceived emphasis on autonomy, private law might seem to offer a promising normative framework for addressing some pressing societal problems.

These challenges and promises invite further reflection about the place of autonomy in private law’s past, present and future. The 2019 Private Law Junior Scholars’ Conference aims to explore these issues, shed light on resulting tensions, and develop possible future perspectives. We invite papers that explore the overall conference topic from different theoretical and methodological vantage points, including historical, comparative, empirical, and critical perspectives.



Papers could address, but are not limited to, the following questions:

(1) How have autonomous agents and autonomous agency been conceptualized in private law from the 19th century to date, and how might they be viewed in the future?

(2) Are equality, autonomy, and independence in private law an ideal or delusion?

(3) How might private law provide tools to address contemporary economic, technological and other potential threats to individual autonomy?

(4) Are current societal and technological developments foreshadowing the end of the autonomy-paradigm, or does it stand unchallenged, after all?

(5) How are we to conceive of the interrelations between autonomy and restrictions of autonomous agency and decision-making in different areas of private law?

(6) What is the relationship among party autonomy, regulation, and standardization in different areas of private law?

Eligibility.  Doctoral candidates, post-doctoral researchers and pre-tenure junior faculty (of up to 5 years from appointment) are eligible to apply. Submissions of unpublished work and works in progress are welcome. Papers that have been accepted for publication, but have not been published at the time of the conference, will also be considered.

Submission and Selection.  We invite abstracts of up to 800 words, submitted through the online form, by January 20, 2019, midnight EST. The abstract should outline the paper’s hypothesis, its main arguments and objectives, and methodology. Submissions will be evaluated based on their quality, their relevance to the overall conference theme, and the interest they present in relation to other proposals.

Applicants will be notified of results no later than February 18, 2019.  The selected presenters will be asked to send their full papers (of no more than 15,000 words, footnotes included) and a short biography for publication in the official conference program of up to 150 words by May 20, 2019, midnight EST.

Each session will start with a 20 minutes presentation by the author, followed by 10 minutes comments from a senior faculty member. The author will then have 5 minutes to respond to the remarks, and then the remainder of the session will be dedicated to Q&A.

The case is Republican Party of Louisiana, et al. v. FEC. As noted on the Federal Election Commission’s website: “On August 3, 2015, the Republican Party of Louisiana, the Jefferson Parish Republican Parish Executive Committee and the Orleans Parish Republican Executive Committee (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of portions of the Federal Election Campaign Act that specify how state and local parties must finance and disclose certain ‘federal election activity’ that they plan to engage in, including fundraising costs for such activity. They argue that the provisions are unconstitutional under the First Amendment because they burden the plaintifffs’ ‘core political speech and association’ and that there is no sufficiently ‘cognizable’ governmental interest justifying the challenged provisions.”

→ The case is now before a three-judge court with James Bopp arguing on behalf of the Republican Party of Louisiana. Recall that Mr. Bopp was the one who played a major role in orchestrating the litigation around such campaign finance cases as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014).

As Professor Richard Hasen sees it, the Republican Party of Louisiana case could prove to be a major moment in the ongoing battle over campaign finance laws and the First Amendment. Writing in The Atlantic, Professor Hasen notes:

“The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.”

“If the Supreme Court still has a vacancy when the soft-money case arrives,” adds Hasen, “that means the lower-court ruling could stand on a 4-4 split. But even if that happens, there will be other cases waiting in the wings. Eventually, when the Court has its full complement of justices, it will face a fundamental decision: Should it embrace the vision of Justice Scalia, in which the Court holds that the First Amendment does not allow meaningful limits on money in politics?”

Related Documents

• Verified Complaint for Declaratory and Injunctive Relief August 3, 2015

• Plaintiffs’ Motion for Summary Judgment

• Defendant FEC’s Answer to Plaintiffs’ Complaint

• Brief of Amicus Curiae The Brennan Center for Justice at N.Y.U. School of Law in Support of Defendant

• Brief of Amici Curiae Public Citizen, Inc., Democracy 21, and Campaign Legal Center in Opposition to Plaintiffs’ Motion for Summary Judgment and in Support of Defendant’s Cross-Motion for Summary Judgment

Though it can be uplifting and life affirming to read law review articles written by people you almost always agree with, better cerebral benefits are usually obtained from reading the writings of people who challenge your ideas and force you to reconsider your views a bit. Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World by Lyrissa Barnett Lidsky and RonNell Andersen Jones, forthcoming in the Virginia Journal of Social Policy and the Law, is an engaging article that taught me a lot about the state of online defamation litigation.

Both co-authors tend to be more libertarian about the First Amendment than I am, so I always learn a lot from reading their scholarship. I also appreciate their clear and accessible writing. The older I become, the less patience I have for tangled prose, poor organization and conclusions so thick with ambiguity you have to eat them with a fork. Though the previous sentence reflects my exercise of the opinion privilege, the bad writers responsible will remain unnamed, due to the actual malice that infuses those words. (A good companion piece to this excellent article is The Death of Slander by Leslie Yalof Garfield.) Continue reading "Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability"

Custom Housing: Hog Pen Creek Retreat; Austin, Texas / Lake|Flato Architects. Image Courtesy of AIA

The American Institute of Architects (AIA) has selected ten recipients for the 2016 Housing Awards. The AIA’s Housing Awards program, now in its 16th year, was established to recognize "the best in housing design and promote the importance of good housing as a necessity of life."

The 2016 AIA Housing Award recipients include: 

Custom Housing: Hog Pen Creek Retreat; Austin, Texas / Lake|Flato Architects

Custom Housing: Hog Pen Creek Retreat; Austin, Texas / Lake|Flato Architects. Image Courtesy of AIA

Custom Housing: Independence Pass Residence; Aspen, CO / Bohlin Cywinski Jackson

Custom Housing: Independence Pass Residence; Aspen, CO / Bohlin Cywinski Jackson. Image Courtesy of AIA

Custom Housing: Island Residence; Honolulu / Bohlin Cywinski Jackson

Custom Housing: Island Residence; Honolulu / Bohlin Cywinski Jackson. Image Courtesy of AIA

Custom Housing: Newberg Residence; Newberg, OR / Cutler Anderson Architects

Custom Housing: Newberg Residence; Newberg, OR / Cutler Anderson Architects. Image Courtesy of AIA

Custom Housing: Oak Ridge House; Jackson, MS / Duvall Decker Architects, P.A.

Custom Housing: Oak Ridge House; Jackson, MS / Duvall Decker Architects, P.A.. Image Courtesy of AIA

Multifamily Living: 1180 Fourth Street; San Francisco / Mithun

Multifamily Living: 1180 Fourth Street; San Francisco / Mithun. Image Courtesy of AIA

Multifamily Living: Cloverdale749; Los Angeles / Lorcan O'Herlihy Architects

Multifamily Living: Cloverdale749; Los Angeles / Lorcan O'Herlihy Architects. Image Courtesy of AIA

Specialized Housing: Commonwealth Honors College, University of Massachusetts; Amherst, MA / William Rawn Associates, Architects, Inc.

Specialized Housing: Commonwealth Honors College, University of Massachusetts; Amherst, MA / William Rawn Associates, Architects, Inc.. Image Courtesy of AIA

Specialized Housing: Homeless Veterans Transitional Housing, VA Campus; Los Angeles / LEO A DALY

Specialized Housing: Homeless Veterans Transitional Housing, VA Campus; Los Angeles / LEO A DALY. Image Courtesy of AIA

Specialized Housing: Whitetail Woods Regional Park Camper Cabins; Farmington, MN / HGA

Specialized Housing: Whitetail Woods Regional Park Camper Cabins; Farmington, MN / HGA. Image Courtesy of AIA

The Available City exhibition at the Chicago Architecture Biennial. Courtesy David Schalliol

At the Chicago Architecture Biennale, David Brown’s project “The Available City” addressed the fact that Chicago currently owns 15,000 vacant lots, many of which have become “havens for illegal dumping, weeds, rodents and street crime.” In this article, originally published on Autodesk’s Line//Shape//Space publication, Jeff Link takes a look at Brown’s project, examining its unique approach to developing the empty lots and converting them into public space. 

David Brown’s Chicago Architecture Biennial project, The Available City, responds to a striking fact: Chicago, in an exodus story echoed across the rust belt, owns 15,000 vacant lots.

The parcels, many of them on the South and West Sides, don’t generate tax revenue, but the city is obliged to maintain them. Outside the watch of homeowners, many are havens for illegal dumping, weeds, rodents, and street crime.

Chicago hasn’t exactly turned a blind eye, says Brown, associate director of the University of Illinois at Chicago’s School of Architecture and the author of Noise Orders: Jazz, Improvisation, and Architecture. Through the Large Lot Program—a pilot that began in Chicago’s Englewood, East Garfield Park, and Austin neighborhoods—individuals and nonprofits that live on the same block as a city-owned vacant residential lot can buy select pieces of land for a dollar.

It’s a compelling idea, and through it and the related Adjacent Neighbors Land Acquisition Program, about 1,000 lots have been purchased in the past five years. But Brown says the city can do more; he suggests thinking of architecture and urban planning like jazz: a formal compositional structure inside of which experimentation can take place.

“I’ve had a long interest in improvisation: how improvisation is structured in music and how that sensibility can carry over and influence how we organize architecture and urban spaces,” he says.

The novelty of Brown’s approach is that it considers vacant city and privately owned lots, typically 25 by 125 feet, in two- to five-lot sets, up to 13 stories tall. The reclassified property boundaries—an area equal to Chicago’s Loop in size—offer room for affordable housing, outdoor recreation, commercial development, and accessible collective public space. As part of the Biennial’s exhibition, BOLD: Alternative Scenarios for Chicago, nine firms were commissioned to interpret these rules in architectural models displayed at the Chicago Cultural Center.

Francisco Gonzalez-Pulido is the chief of design and president at JAHN. His design—“KTC 234” (Knowledge Trading Center), created in partnership with the German architect and structural engineer Werner Sobek—envisions a 24-hour global classroom made up of learning cells that facilitate knowledge trading.

The exhibition's KTC 234 design. Courtesy Francisco Gonzalez-Pulido (JAHN). Image

Using the fully allowable 13 stories, Gonzalez-Pulido’s 125-square-foot cube is a decidedly non-image-conscious building inspired as much by Spanish surrealism as by modular, prefabricated forms of the 1970s. “We’re too focused on image and profit these days, and I find that sad, putting people in the smallest room possible and charging them the biggest fees to live there,” Gonzalez-Pulido says. “This is a place where you can reinforce the idea of knowledge in society.”

Imagined for development in a commercial district along the Chicago River and accessible by boat, bike, or foot, the high-performance building of resins and composites includes mother cells that generate energy and walls that get thinner and lighter at increasing heights. The nonhierarchical form mirrors its democratic function. Musicians, cooks, and app developers—or whoever wants to come by and trade expertise—can teach informal classes and earn knowledge credits to exchange for their own learning.

“A lot of this came out of the way I experience my day: wishing I was sitting somewhere learning something or listening to something, rather than surfing the Internet,” Gonzalez-Pulido says. “My goal was to design a building that is incredibly democratic.”

For Ania Jaworska, an independent architect and visiting assistant professor at the University of Illinois, the desire to unite people in a welcome atmosphere of free idea exchange is equally apparent. Her open-air pavilion borrows the pitched-roof typology of a home. Bounded by Grecian-style columns, an extruded plaza includes a long community table and conversation-pit space. The space provides room for a variety of functions, from block parties to barbeques. “I was really thinking about the basic need of people to gather around the fire and discuss ideas in an open-ended and serious way,” she says.

Ania Jaworska design. Courtesy David Schalliol

Meanwhile, a topographical, multistrata design by architects Juan Gabriel Moreno, Miriam Neet, Dan Spore, Katie LaCourt, and Ted Jamiefield of JGMA reimagines a void within Humboldt Park in Chicago’s West Side. The park reflects the demographics of the rapidly gentrifying Latino neighborhood; it’s the site of a bird-friendly lagoon, soccer fields, food trucks, and the National Museum of Puerto Rican Arts & Culture.

“It’s a cool place to be all of a sudden,” says Moreno, president and founder of JGMA. “Hipsters are moving in, and now people want to live in the area.”

Targeting a 24-block area anchored by Norwegian American Hospital, JGMA’s vision integrates a constructed landscape of pools, vegetable gardens, and hills, extending the park south to W. Augusta Boulevard and east to N. California Avenue. A wellness-centered stratum connects park space to the hospital and surrounding community. That the space was not included in the original park framework of William Le Baron Jenney and Jens Jensen is an ironic twist on the idea of wellness and community.

JGMA model. Courtesy David Schalliol

“Everything we want to do has to do with keeping people out of the hospital—rethinking nutrition and physical fitness, looking at programs for how we grow food, and providing places for swimming,” Moreno says.

Offering a more minimalist approach is Krueck + Sexton Architects’ “Chicago Boogie Woogie,” a novel take on microhousing. Architects Tom Jacobs, Mircea Eni, Sean Myung Shin Kim, Elias Logan, Don Semple, and Lindsey Telford connect five city lots to create a mixed-use residential space with the massing oriented toward the street. With the front setbacks reduced, the design preserves a rear courtyard. Inside, the design carves out shared social spaces, such as a game room and a formal dining room, which all occupants can access. Adult dormitories offer sleeping quarters for individuals of varied incomes.

The exhibition display placard reads simply, “When you own a unit here, you own a bed, a living room, a dining room, a kitchen, a café, a restaurant, a florist, a barbershop, a workshop, a library. You own everything. Even an orchard.” It’s a fitting description for a collective space of shared ownership.

In theory, all of that sounds great. But will any of these ideas come to fruition? To ignite the imagination of city officials and encourage investment in vacant land and impoverished neighborhoods, these proposals ultimately need to arouse interest from private stakeholders, foundations, and community groups. That begins, Brown says, with rule changes in city leasing and easement structures that would allow resident groups, businesses, and wards to function as collective development entities, unburdened by traditional zoning classifications.

Within two years, Brown says he’d like to see a freestanding, landscaped-based surface example as part of a city exposition that could motivate such jurisdictional rethinking. And there are other signs these responses may be more than just ideas on paper.

“I think we’re getting interesting reactions from clients,” says Gonzalez-Pulido. “When we start talking to them and they see the presentation posters, they think of potential applications, like a client developing employee housing in Qatar for the 2022 FIFA World Cup. They ask, ‘Is it possible? Can we use another old loft building as the site of a rehearsal space for musicians?’ Maybe.”

After spending 4 years doing other sorts of graduate coursework before starting my JD, I was pretty surprised when I learned that many (most?) legal academics don’t use reference management software. However, after an introduction to the Bluebook, I realized why this is probably the case. One of the best features these sorts of programs provide is the ability to automatically generate and dynamically update the citations in a paper-in-progress. Unfortunately, the Bluebook is so (needlessly?) complex that until recently there wasn’t a good implementation of BB style citations by any of the major citation management packages. 

Enter MLZ, a branch of the open source Zotero program aimed at implementing a number of multi-language features (hence the name “MultiLingual Zotero”). But the “killer feature” as far as legal writing goes is the MLZ Bluebook style. While MLZ’s bluebooking isn’t perfect, I’ve seen many hundreds of submitted law review articles and I’d wager that a paper written solely relying on MLZ’s automatic citation generation would be in better bluebooking shape than most of the articles that student reviewers receive. And, for better or worse, the state of one’s citations is probably an important factor in determining how your article is perceived by reviewers. 

Using reference management software will result in improved organization and faster writing for most. While there is undoubtedly some start-up cost incurred whenever you adopt a new technology like this, I’m convinced it would be a net benefit for most. Even if you have the luxury of RA funds that you can direct towards citation improvement, think about how much more you could have your RAs do if they didn’t need to spend all those hours making sure book titles are in small caps.

In addition to formatting citations, reference management software makes it easier to share your libraries, and manage the articles you’ve read. Without reference management software I would spend many more hours searching for “that piece I know I read, but can’t remember where.”

MLZ isn’t the only game in town. EndNote, one of the most popular reference management packages, also has some Bluebook functionality. I experimented with it a few years ago and was less than impressed, but perhaps it has improved since I last tried it. I’d be interested to hear about others’ experiences. Do you use MLZ? Endnote? Other packages? There’s no shortage of options, although many don’t support bluebook formatting. If you’re not using one, why? Try it. You’ll love it…

Scott Anderson’s article Conceptualizing Rape as Coerced Sex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.” So understood, rape is the criminal act of “either creating or taking advantage of pre-existing differentials in the ability and willingness to use force or violence,” toward the end of obtaining sexual gratification from the victim. The power differentials that render the pressure “coercive” are quintessentially created through direct force, violence, or threats of violence, but might also include taking physical advantage of another who is mentally or physically incapacitated because of intoxicants or cognitive or mental impairment. Most important, though, the power differentials at the core of the “coerciveness” that renders sex rape might be facilitated not by direct threats, but by drawing upon “the link between the threatener and others of a similar kind who have used similar powers in the past.” When sex is “coerced” in any of these ways, such that the victim is not able to “usefully or reasonably ignore, deflect, evade, or work-around the enforcement of the threat,” then the sex that results should be understood as rape.

Note that on Anderson’s account the victim’s consent or non-consent is not part of the definition of the crime (although it may enter as a defense). Rather, the definition focuses squarely on the assailant’s acts and mental states, rather than those of the victim: did the assailant create or take advantage of pre-existing differentials in the ability and willingness to use force or violence” to obtain sex. Nor does it require direct force: rather, the “differentials” in power that facilitate the rape may pre-exist the act itself, and may be as much a function of the similarity between the agent and others similarly situated, as anything the agent himself does in the particular encounter. This coercion-based account, Scott argues, would avoid both the under-inclusiveness of definitions of rape that center on force, and the possible over-inclusiveness of definitions of rape that center on consent. More significantly, it would better capture both what is distinctively harmful about rape, why rape is overwhelmingly (but not universally and certainly not by definition) a crime committed by men upon women, and why rape is a constitutive aspect of gender subordination to women’s detriment. Continue reading "On Rape, Coercion and Consent"

Reading Montaigne, the god of the sinuous modern essay, the essay that invites the reader to watch the writer write, is “reading him reading,” and reading others reading him before.

At Lit Hub, Hannah Brooks-Motl describes how reading stimulates the self-consciousness of reading itself. She wonders, is reading “an act, a decision, a process, a right, a privilege, a behavior?”

Related Posts:

• Re-Rethinking Harper Lee
• February 25th, 1956
• The Big Idea #12: John Freeman
• Stacks on Stacks
• The Page Is Mightier than the Screen

The University of Illinois College of Law is now accepting papers for its Annual Comparative Law Work-in-Progress Workshop, which will be held on Friday and Saturday, April 15 and 16, 2016, at the University of Illinois College of Law in Urbana-Champaign. All interested comparative law scholars are invited to submit a paper.

Interested authors should submit papers to Jacqueline Ross at the University of Illinois College of Law at jeross1@illinois.edu by February 1, 2016. Authors will be informed of decisions by March 1. Participants whose papers have been accepted should plan to arrive in Champaign-Urbana, Illinois by Thursday night on April 14 and to leave either late on Saturday (as there is a 6 p.m. flight) or on Sunday, April 17.

The annual workshop continues to be an important forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors. “Work in progress” means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (and can still be revised after the workshop, if it has already been accepted for publication.) It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres.

Click here for more information.

Editor’s Note: The hopes for democracy in the Middle East that flourished after the Arab Spring are now gone. Hope for positive change, however, rests on many of democracy's building blocks, such as the rule of law, civil society, and a free press. These too remain under siege in many countries. Sarah Yerkes, a visiting fellow with us in the Center for Middle East Policy at Brookings, details the troubling increase in media censorship in the Middle East and argues that such pressure is likely to backfire.

***

The recent awarding of the EU’s top human rights prize to imprisoned Saudi blogger Raif Badawi is shining the spotlight once again on the rampant abuse of freedom of expression in the Middle East and North Africa. Although Arab autocrats have long used control of the press to silence opposition, in recent months the state has turned up the heat on both traditional and digital media actors in some not-so-surprising places, like Egypt and Saudi Arabia, and some surprising places, like Morocco and Tunisia.

Rather than silencing them, by engaging in increasingly harsh and obviously political attacks against the media, Arab states are drawing international attention to and thereby amplifying the voices of their critics. 

What does a media crackdown look like?

When Arab leaders decide to initiate a crackdown on journalists, bloggers, and media activists they tend to use the same excuse: counterterrorism. This usually comes in one of three forms: criminalization, harassment, or censorship. Criminalizing criticism of the police or armed forces in the name of preventing terrorism — either through passing new anti-terror legislation, enacting emergency laws, or acting extra-judicially — allows governments to neutralize the press while giving the appearance of good intentions.

When governments are less concerned about their image at home and abroad, they may resort to physically attacking or harassing journalists who attempt to cover anti-regime protests or elections. The officers who carry out these attacks often act with impunity. Governments also use censorship (either self- or editor-imposed censorship, or government oversight) to prevent negative stories from seeing daylight in the first place. 

Egypt, once home to a “partly free” press, has seen a continuous assault on the media since a government crackdown surrounding the November 2010 elections. The Egyptian government has exercised further and increasing state control over the media since the 2011 revolution and has gone so far as to ban entire news outlets, such as Al Jazeera’s Egyptian affiliate. To aid in its control over journalists and media activists, the Egyptian government also relies on a vast electronic surveillance network.

In a place like Morocco, where the state works hard to build a democratic façade, violations against press freedom often appear in creative ways. For example, as Freedom House notes, “Morocco’s 2011 constitution guarantees freedom of the press, but its vague language enables great latitude for interpretation and hinders enforcement of media protections.” Morocco has arrested and imprisoned media figures for crimes with no overt connection to their work, such as adultery.  Morocco has also deported foreign reporters and accused local media activists of financial improprieties.

Most worrisome are reports of media crackdowns in Tunisia, which Freedom House rated the first “free” Arab country since 1975 in its latest Freedom in the World Report, and which regularly rates more favorably than the remainder of the Arab world in press freedom reports. Much like Morocco, Tunisian authorities rely on a confusing and sometimes contradictory legal framework to justify prosecution of journalists. As the Committee to Protect Journalists notes, “the government … has introduced new legislation that could be abused to silence the media. Security services are sensitive to criticism, leading to legal harassment of critical journalists and even physical assaults and threats on those carrying out their reporting.”

Miscalculating the backlash

Why are Arab governments from across the region targeting the press? One explanation is that certain journalists and bloggers are either intentionally or unintentionally harming state stability through their work. The more realistic answer is that Arab leaders believe that by shutting down existing critical forms of communication and preventing new voices through intimidation of the media sector writ large they are protecting their regime’s longevity. And they are confident that they can get away with media repression. Here, Arab leaders are making a dangerous miscalculation. 

It should now be clear that in the Internet age it is impossible to truly silence one’s critics. In Egypt, during the early days of the revolution, the Mubarak regime took the unprecedented step of turning off the Internet, believing — falsely — that this would prevent citizen connectivity. That effort failed. Today, even if the local media is unable to get their message out, some form of “citizen journalism” usually can. 

Additionally, international non-governmental organizations (NGOs) such as the Committee to Protect Journalists, Human Rights Watch, and Reporters Without Borders have become increasingly vocal in their criticism of Arab states’ disregard for press freedom. This criticism not only gives an international platform to the very individuals and activities the state is trying to silence, but also makes many Arab governments appear hypocritical to the international community. In states like Morocco or Egypt that at least give lip service to respect for rule of law, a scathing NGO report or dozens of international media stories about imprisoning or forcibly disappearing journalists makes these violations difficult for the U.S. government to ignore.

Although Arab leaders may believe that a strong security relationship with the United States insulates them from criticism, in reality press freedom is one of the most fundamental and cherished U.S. values, infringements upon which are likely to draw ire from across the U.S. political spectrum. This does not mean that the United States will cut off assistance in the name of protecting press freedom, but it can have a diplomatic impact. As reports of media crackdowns multiply and take on a more clearly political bent, the United States is less likely to publicly praise the reform efforts of countries like Morocco and Egypt and, in private, will likely engage in difficult conversations with governments who are not keen to hear their internal efforts criticized.

Another miscalculation on the part of the Arab leaders is the importance of the media as a pressure-release valve. With a free press and even limited freedom of expression, citizens have more confidence in the state and the justice system, in particular.  Providing citizens a legitimate outlet through which to express their opinions contributes to rather than undermines state stability.

It is time for Arab leaders to realize that cracking down on the media is not achieving the desired effect. Protecting press freedom may be painful for the political leadership, at times, but in the long run it can benefit the citizenry, the state, and maybe even the political leaders themselves.

Tulane University Law School hosts the Fifth Annual YCC Global Conference (Younger Comparativists Committee of the American Society of Comparative Law) March 18-19, 2016. Abstracts are due by Oct. 30, 2015.

The Younger Comparativists Committee of the American Society of Comparative Law (“the Committee”) is pleased to invite submissions for the Fifth Annual YCC Global Conference, to be held on March 18-19, 2016, at Tulane University Law School in New Orleans, Louisiana.  The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists.

Conference Subject-Matter and Eligibility

Submissions on any subject in public or private comparative law are welcome.  Eligible scholars may submit individual papers or propose fully formed panels.  The Committee accepts individual paper submissions and proposals for panels (usually 3 to 4 presenters).  The Committee encourages submissions and panel proposals in all areas of comparative law, and particularly in the areas of business law, insolvency, antitrust/competition law, intellectual property law, litigation, and arbitration.

Only individuals who have been engaged as law teachers, lecturers, fellows, or in another academic capacity for no more than ten years as of June 30, 2016, are eligible for individual submissions or as panel presenters.  Graduate students enrolled in masters or doctoral programs are also eligible to submit proposals.

Submission Instructions

To submit an individual paper or propose a fully formed panel, scholars must email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than October 30, 2015, to the following address: YCC2016AnnualConference@gmail.com.

Abstracts and panel proposals should reflect original research and thought.  Submitted papers may not be published, but may have been accepted for publication at the time of the conference.  Abstracts and panel proposals must include the author’s name, title of the paper, institutional affiliation, position at the institution, contact information, as well as the author’s certification that she/he qualifies as a younger scholar.  Graduate students must identify themselves as such.

Each scholar may submit only one individual paper or panel proposal.  Individual and co-authored papers may also be submitted.  When submitting co-authored papers, both authors must qualify as eligible younger comparativists.

Proposals for fully formed panels must be organized around a common theme and include a confirmed list of the panel members and the required submission information. When submitting a panel proposal, the proposal must include the abstract of each participating presenter.  For panel proposals, please also include the words “panel proposal” in the subject line of your submission email.

The Committee will group individual and co-authored papers by subject area and assign them to different panels by relevance.  Concurrent panels will be held on two days, both March 18^th and 19^th.

Colin B. Picker Graduate Student Prize

The Third Annual Colin B. Picker Prize will be awarded for the best paper submitted by a graduate student.  To be considered for the award, graduate students must first submit an abstract to the Committee by the above specified conference deadline of October 31, 2015, and have that abstract accepted for the main conference.  Following acceptance of their abstract, graduate students may then submit their final papers by January 31, 2016, for consideration of the Colin B. Picker Prize.  To do so the final papers must be submitted to the following email address: YCC2016AnnualConference@gmail.com and contain the subject line  “Submission for Graduate Student Prize.”  Papers submitted without the proper subject line and papers received after January 31, 2016, will not be considered for the award.

Notification

Authors and panel proposers will be notified of the acceptance of their submissions and proposals by no later than December 11, 2015.

Cost and Registration

There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging, and other incidental expenses.  A limited number of travel stipends may be awarded to those who demonstrate financial need.  If you would like to be considered for a travel stipend, please make that request clearly in your submission.  In your stipend request, please identify whether you are affiliated with an institution that is a member of the American Society of Comparative Law.

Paper Deadline

All scholars selected for the conference must submit final papers by email to YCC2016AnnualConference@gmail.com no later than February 19, 2016.

Please direct all inquiries to Professor Sally Brown Richardson, Chair of the Program Committee, by email at richardson@tulane.edu or telephone at 504.865.5961.

Lauren Henry (Yale University - Information Society Project) has posted Information Privacy and Data Security (Cardozo Law Review de Novo, 2015, Forthcoming) on SSRN. Here is the abstract:

Legal academic and policy discourse generally presumes that information privacy and data security are interchangeable goals. The conventional wisdom is that data security is a handmaiden of information privacy, and so what serves data security will serve information privacy. This Essay aids law and policy development in both fields by defining their relationship to one another. The two fields are inexorably related because both are sets of rules governing sensitive data sets, and so modifications to set of rules can impact the other set. Furthermore, information privacy and data security both implicate issues of trust and institutional legitimacy from the point of view of the individuals whose data is being collected, processed, or distributed. However, data security has separate objectives from information privacy that can be agnostic or even in opposition to information privacy. The law should acknowledge information privacy and data security as separate institutional objectives to prevent undesirable – or at least unpredictable – results in edge cases where data security’s objectives run counter to those of information privacy.

“The Penn State Law Review is conducting an exclusive spring-cycle article review. Any article submitted to this exclusive review between now and April 19th will be evaluated by April 27th. If you have submitted an article to the Penn State Law Review previously, you must resubmit your article for consideration in the exclusive article review.

By submitting your article, you agree to accept an offer for publication, should one be extended. Any articles accepted will be published in Volume 120: Issue 1 or Issue 2 of this review—both of which are slated for publication in summer of 2015.

If you have an article that you would like to submit, please e-mail an attached copy of the article, along with your cv and cover letter, to esg5028@law.psu.edu . Please include “Exclusive Spring 2015 Article Review” in the subject line.”

At a hearing Wednesday evening on HB 2263 by Rep. Bryan Hughes requiring warrants for the government to access personal location data from cell phone companies, cops from Dallas and Houston testified that historical information should be subject to a lower standard than a Fourth Amendment probable cause warrant because it's less accurate than real-time tracking. The argument is that you can only tell which cell tower someone connected to, further narrowed by which third of the tower's range the signal came through. They depicted the scope of a cell tower's expanse as up to ten miles, and in rural areas I suppose that could be true. But these were Dallas and Houston cops and, as a factual matter, coming from those urban jurisdictions that's some pretty weak tea.

Here's how AT&T described the accuracy of historical cell phone location data in an amicus brief on the issue in November 2014:

The precision of this location information varies according to the array of the towers and technology employed. As the density of the cell towers increases (decreasing the area covered by any particular tower), the precision of the CSLI increases correspondingly. Rural or sparsely populated areas generally have fewer cell towers, each serving a larger territory. In more densely populated areas, towers are much closer together and serve smaller areas, generating more specific location information. As customers demand more bandwidth to support smartphones, video services, and other high-volume Internet access, service providers are increasing the density of cell towers, further shrinking the size of particular cells. Service providers are also increasingly boosting their network coverage through small cells known as “microcells” or “femtocells” that may cover an area as small as a single floor of a building or an individual house.

Cellular communications technology may also generate other, more precise forms of location information. For example, some mobile devices, such as smartphones, are equipped with GPS technology which determines the device’s exact location based on signals received by the phone from a network of satellites.  In addition, because mobile devices are often in contact with more than one cell tower at a time, it is often possible to  locate the device through triangulation – i.e., determining the point of overlap among the areas covered by each of the multiple towers within range of a particular device. ...

CSLI at times may provide more sensitive and extensive personal information than the car tracking information at issue in Jones [ed. note: a SCOTUS decision declaring use of GPS trackers is a search]. Users typically keep their mobile devices with them during the entire day, potentially providing a much more extensive and continuous record of an individual’s movements and living patterns than that provided by tracking a vehicle; CSLI, therefore, is not limited to the largely public road system or to when the device user is in a vehicle. That difference, in turn, may enable officials to use historical and prospective CSLI to construct a more detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines – including activities related to the home.

If "historical data is inaccurate" is the best argument they've got (all law enforcement witnesses granted that real-time tracking should require a warrant), this bill with its 97 House authors ought to do fine!

The whole AT&T brief (pdf) is quite a remarkable document for those interested in the topic. It staked out the corporate arguments in a systematic and compelling way for installing a probable-cause warrant requirement for government to access this detailed personal information.

MORE: It's worth noting both AT&T and Verizon registered in favor of Hughes' bill at the hearing.

I’ve been on a wallpaper kick all week. It seems like everyone is gearing up to launch new collections at the big design shows this spring, so social media has been full of great previews and sneak peeks. One of my favorite lines that I’m hoping to see in person belongs to British designer Abigail Borg. Abigail’s work takes its inspiration from the world outside. Whether that’s a beautiful Fritillaria flower, Dahlia or Foxtail, Abigail’s wallpapers feel like a lush field of flowers that’s come to life on the wall. I love the slightly retro color palette she’s working with, too — it’s the perfect combination to create a larger-than-life version of the flowers and plants we see around us in real life. Abigail uses her patterns for textiles and stationery, too, so if you’re interested in checking out her work or ordering online, click here to visit her site. Until Monday, have a wonderful weekend! xo, grace

• This new cookbook, Cooking with Jackson Pollock, uses his real handwritten recipes to create stunning meals, with photos from his home. (via Julia)
• The Mad Men Museum in Queens opens its doors. You can set foot onto the real sets!
• We love this Mesh Shelf series by Bride & Wolfe. (via Garrett)
• The new Soho House Istanbul looks stunning. (via Garrett)
• 12 solutions for covering litter boxes. YESSS. (via Remodelista)
• The floors in Charlotte Vauvillier’s apartment are incredible. (via Desire to Inspire)

• Must-Reads: The D*S Quarterly Box #2, Wallpaper by These Walls, Kate Zaremba Wallpaper
• Sneak Peeks: Updates from Grace’s Home: Upstairs and Downstairs, A 1900s Farmhouse in Bell Buckle Tennessee, A 1930s Beach Cottage, A stylish Swedish Homestead,
• Studio Tours: Bind & Fold, Berkley Illustration and MaeMae Co.
• Recipes: Spaghetti with Clams, Monk’s Beard and Lemon
• City Guide: 24 Hours in Marbella, Spain
• Life & Business: Interviews: Cecilia Ruiz and Nana Osei, Doing the Work You Were Born To Do with Marie Forleo
• DIY Projects: DIY Fabric Buckets/Planters
• Before & After: An RV Becomes a Traveling Home, A closet becomes a sewing station,

Dear colleagues,

I’m very happy to announce the call for proposals and attendees for the 8th Annual National Security Law Workshop, which will take place in Houston on May 14th and 15th this spring. Geoff Corn and I are co-hosting once more, and as in the past the event is co-sponsored by the International Committee of the Red Cross, South Texas College of Law, and the Strauss Center for International Security and Law at UT.

The details below, and also in the attached document. Please pass this along to anyone who you think might be interested. The deadline for applications is March 20th.

ANNOUNCING THE 8th ANNUAL

NATIONAL SECURITY LAW WORKSHOP

Co-hosted by:

Professor Geoff Corn

Professor Bobby Chesney

Sponsored by:

The International Committee of the Red Cross

The South Texas College of Law

The Robert S. Strauss Center for International Security and Law at the University of Texas—Austin

May 14-15, 2014

Location: Houston (South Texas College of Law)

2015 NSL Workshop Invitation.docx

The FBI's assessment of its drones' impact on the privacy of Americans has never been made public. It's been nearly a decade since it first deployed drones, and the agency has yet to provide anything on the subject. FOIA requests (there are several out there) have been greeted with nothing -- every single page withheld under the government's go-to exception, b(5).

Now, it's telling FOIA clearinghouse MuckRock that its obfuscatory efforts have buried the documents so deep even the FBI doesn't know where its Privacy Impact Assessment is.

Six months ago, the Federal Bureau of Investigation refused to release its plans to tackle privacy risks posed by drone surveillance. Now the agency claims it can’t track them down at all. So does the one Justice Department office responsible for making sure such reports get filed in the first place.

As Shawn Musgrave of MuckRock points out, the FBI's continued secrecy runs contrary to both the FOIA and its own obligations to the general public in terms of its surveillance programs' impact on the American public.

By design... PIA reports are meant for public consumption. They are supposed to candidly outline potential privacy risks for a given piece of software, data collection initiative or other technology, as well as the steps taken to address such risks. And unless an agency presents a good case otherwise, PIAs are supposed to be published online.

MuckRock refiled its previously-rebuffed FOIA request, adding a demand for any internal memos regarding the FBI's decision to not only withhold this impact assessement in full, but its refusal to post its PIAs online per standard operating procedure. It sent the same request to the Office of Privacy and Civil Liberties -- the oversight agency tasked with ensuring agencies like the FBI don't cut the public out of the loop by withholding required impact assessments. The OPCL also had no idea where this document -- that it is charged with obtaining and holding -- might have gone.

Last week, the Justice Department confirmed that neither the FBI nor OPCL had been able to find anything despite “an adequate, reasonable search for such records.”

So… did the FBI toss the troublesome document into the nearest shredder (as if it isn't stored online somewhere within its internal network)? Or is it simply uninterested with fulfilling the minimal requirements of its accountability to the public? The latter appears to be the likeliest answer. In an update to MuckRock's original post about the MIA PIA, Shawn Musgrave reports that the DOJ has issued a statement suggesting MuckRock go fuck itself try the same thing that resulted in zero released pages six months ago.

Two hours after publication and in the wake of three FOIA requests, the Justice Department declined to clarify whether the FBI has analyzed potential privacy risks posed by its drones. “The questions you raised are best addressed through FOIA,” wrote Peter Carr, a Justice Department public affairs specialist, in reply to an email asking if the FBI had filed drone privacy impact assessments, “and it is my understanding that you sought similar information already through our FOIA office.”

The Justice Department’s privacy office thus dodged a yes-or-no matter — has the FBI has completed the legally mandated privacy analysis process? — by referring to previous, unclear FOIA responses. “Should you seek further information, please submit another request,” suggested Mr. Carr in conclusion.

"Unclear" is being generous. The original FOIA response looked like this:


And the most that could be determined from this "response" is that the FBI's drone impact assessment contains at least 26 pages and, at one point, was somewhere where the feds could actually locate it.

EPIC, which is currently suing the FBI over its refusal to publish its privacy impact assessments, is completely baffled by the collective shrug offered by these two agencies -- one which is supposed to craft and publish its assessments and that's supposed to provide (obviously needed) oversight. Both seem equally uninterested in fulfilling the requirements of their jobs.

EPIC lawyers are stumped by the Justice Department’s response to FOIA requests for its drone reports, and particularly the OPCL’s claim not to have any PIA documents.

“They review the privacy impact assessment—that’s part of their responsibility within the Justice Department,” says Ginger McCall, who heads EPIC’s Open Government Project.

Well, transparency and accountability are both part of the three involved agencies' jobs, but none of them seem interested in even creating the appearance of paying lip service to those crucial aspects of their responsibilities to the public. Instead, we get a list of pages the FBI won't let us read, followed by the declaration that the document is missing entirely.

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Today is the very first post in a new and ongoing series on our site called Home Ec. Inspired by the classes some of us grew up taking, these new posts will be about simple ways to keep your home functional and beautiful and working to meet the needs of your family. Whether that means mastering the art of decluttering, making spaces pet-friendly, finding ways to keep kids’ rooms clean or just making tidying up easier, these posts are about finding ways to help make your home make you happy. There is never (ever) one right way to do things and there is no home or home plan that is perfect for every person. These posts are intended, much like Modern Etiquette, to help share some trusted guidelines that you can use, or tweak, to suit your needs.

I was SO happy to see all of your requests and ideas for upcoming columns, so please stay tuned for those topics soon. But first I wanted to start with a topic that’s near, although not always dear, to my heart: cleaning. To be quite honest, I don’t love cleaning. I am someone who has both learned to live somewhat minimally (so messes are less likely to happen) and someone who is pretty okay with things being piled up here and there and getting to the dishes when I have time. But I genuinely understand and embrace the idea that a clean, tidy house is one that helps you feel relaxed and restored at home. When the Mrs. Meyers Clean Day team sent me a copy of their “no-nonsense” clean home book, I gravitated toward one section of the book immediately: A quick and easy guide of what to clean in your home and how often. Broken down by frequency (i.e.: once a day, once a year), the book made all of the household chores on my list feel less like a burden and more like a simple guideline of things to do. Because let’s be honest, not everyone has time to mop the floors and scrub the sinks every day. But once a week? That might be doable.

No matter what frequency is right for you, this easy, downloadable guide is designed to help you have a map to follow when you have the time to spruce things up a bit. Whether you’re just spraying down your counters or getting down and dirty with your tile floors, it’s always true that chipping away a little bit every day always makes things a little easier. So I hope this starter guide will help you feel more in control of things at home and help make messes feel less overwhelming. Remember: no one, and no home, is perfect. If you can only get to one of these things on this list, it’s better than none. And it gets you one step closer to feeling like you can come home, drop your bags at the door and feel relaxed and calm. xo, grace

Download the printable guide here!

Frank Rudy Cooper (Suffolk University Law School) has posted Surveillance and Identity Performance: Some Thoughts Inspired by Martin Luther King (New York University Review of Law & Social Change, Vol. 32, p. 517, 2008) on SSRN. Here is the abstract:

This essay applies Judith Butler's theory of identity performance - the idea that we create our identities by acting in ways designed to leave a particular impression - to the Fourth Amendment. As a jumping off point for that analysis, it details the FBI's extensive surveillance of Martin Luther King, JR. That surveillance may have altered King's behavior. It thus conflicted with a bedrock principle of our government, the idea that people ought to be able to self-actualize by behaving as they see fit. 

The essay suggests that our current Fourth Amendment jurisprudence fails to adequately curtail surveillance because it improperly defines the threshold issue of when the government's use of new surveillance technology constitutes a search. It thus critically reviews the Olmstead protected areas model, the Katz protected interests model, and the Kyllo hybrid model of the Fourth Amendment. 

Ultimately, the essay argues that Butler's theories help us think about the appropriate model. Butler's basic idea is that masculine or feminine actions do not express an essential self. Instead, we take our cues from cultural norms for how people who are masculine or feminine should act. That process is intersubjective, since the behaviors of others influence how our own identity will be perceived. Since performance constitutes identity, safeguarding the ability of individuals to behave as they see fit is crucial to allowing the possibility of self actualization. As the FBI surveillance of King demonstrates, surveillance can prevent people from performing as they see fit. The essay concludes that we should adopt a Fourth Amendment model that assures that new surveillance technology comes under Fourth Amendment scrutiny.

This past fall, while teaching cooking classes, I met a man named Len, who loved to bake and who always showed up to class a few minutes early, ready to help with any remaining prep work, always with some sort of baking adventure to recount.

Before the last class, Len asked me if I had ever made bialys, which he had learned to make at a “bagels and bialys” cooking class held at the local community college. I hadn’t but noted I had made bagels once years ago and remembered it being kind of a process. Len assured me bialys were much simpler to make than bagels — no boiling required — and sent me the recipe later that night.

I didn’t get a chance to look at the recipe till last week, but when I did, I was struck by its similarities to the Jim Lahey no-knead pizza dough recipe. For starters, each recipe calls for nothing more than flour, salt, water and yeast — no oil, no sugar, no barley malt syrup (often in bagels), etc. Each recipe, too, calls for 1000 grams of flour, and each goes big on the salt: 4 teaspoons of sea salt for Lahey’s, 5 teaspoons of kosher salt for the bialys. Water amounts are similar as well: 3 cups for Lahey, 2 3/4 cups for the bialys.

The amount of yeast is where the recipes differ — 1/2 teaspoon for Lahey, 2 teaspoons for the bialys — but this makes sense because Lahey’s recipe calls for a long, slow rise. As you know, I love the Lahey no-knead, slow-rise technique, which creates beautiful air pockets in the final product, whether it’s a boule, a pizza, or something else. I also am always a fan of starting any recipe in the evening, especially bread, especially if it’s just a matter of mixing flour, salt, yeast and water together.

The overnight method, it turns out, works beautifully for bialys. To account for the long, slow rise and the higher quantity of salt (which can kill yeast), I used 1 teaspoon of yeast, which allowed the dough to rise at nice, slow pace. And because I wasn’t kneading the dough, I had to add 1/4 cup more water (which made the water-to-flour ratio identical to Lahey’s) to get the flour to incorporate fully. By morning (12 hours after mixing the dough), the dough had risen beautifully, its surface dimpled with bubbles and air holes.

From there, I followed Len’s recipe to a T, and ever since, I (and the family) have been on a bialy bender. Every batch disappears quickly, usually in this progression: first without even a smear of butter — the onion-poppy seed-breadcrumb filling/topping, whose flavor permeates the whole bialy, is irresistible. Later in the day we halve them and spread them with softened butter or cream cheese. For dinner we toast them under the broiler, one half covered with a slice of cheddar, and then, upon pulling them from the oven, we slide a fried egg onto the uncheesed half and hit it with a healthy squirt of Sriracha.

Bialys, understandably, are often likened to bagels, but as their makeup would suggest, they taste more like a roll, they’re not as chewy, they’re much lighter in texture, and they seem to be more versatile. My favorite way to eat them is halved, spread with cream cheese and topped with gravlax, capers, onions, chives and lemons, though as far as I can tell, there’s no wrong way to eat a bialy.

Portioning the dough into 90g pieces:

While the balls rest for another 45 minutes, get on with the filling:

Sauté an onion.

Then add poppy seeds and breadcrumbs.

Cream cheese, gravlax, capers, onions, chives, lemon. Walnut Serving Board from Provisions by Food52 — so pretty!:

Toasted bialy, melted cheddar, fried egg, sriracha:

The first batch I made puffed way up, which is totally fine and delicious, but maybe not as traditional. Be sure to really press down and stretch out that center area while you are shaping if you want that more traditional bialy shape.

Helper:

The post Homemade Bialys appeared first on alexandra's kitchen.

That’s the title of a very interesting forthcoming Columbia Law Review article by Jessica Bulman-Pozen and David Pozen; here’s an excerpt, just to show a sense of what the article covers:

In April 1993, a group of California motorists hit the road to protest the fifty-five-miles-per-hour freeway speed limit. The motorists did not violate any laws, or even test any legal bounds. But their actions caused significant disruption and enraged people around them. What did they do? “[J]ust about the worst thing you can do to your fellow freeway drivers: They stayed within the speed limit.” To challenge the fifty-five-miles-per-hour rule and encourage its repeal, the National Motorists Association members devised a peculiar form of dissent: meticulous compliance with the very law they opposed.

Scholars and activists have long been interested in conscientious and communicative breaches of law as an instrument of protest. The civil disobedient violates a legal command in a bid to register dissent and motivate reform. Yet as the freeway protest underscores, people may also seek to disrupt an existing legal regime by adhering — in a hyperbolic, literalistic, or otherwise unanticipated manner — to its formal rules.

This Article asks how we might theorize and respond to these more paradoxical challenges to the status quo. We seek to identify, define, and elucidate the phenomenon we call uncivil obedience. In important respects, uncivil obedience is the mirror image of civil disobedience. On most accounts, civil disobedience consists of an open violation of law and a willingness to submit to punishment. Uncivil obedience inverts these terms. Instead of explicit law-breaking, it involves subversive law-following. If civil disobedience is unusually deferential to legal authority, relative to ordinary unlawful conduct, uncivil obedience is unusually defiant of established social practice, relative to ordinary lawful conduct. And it carries no clear legal consequences. As the California Highway Patrol spokesman said of the speed-limit protestors, “If they’re going on the freeway at 55, there’s not much we can do to them.”

Uncivil obedience is a recurring feature of public and private law contestation. Unlike civil disobedience, however, it is an obscure feature, a neglected category. An appreciation of its workings, this Article aims to show, offers practical and conceptual rewards for scholars, protesters, and policymakers alike. Investigating this phenomenon can help us to think through not only relatively minor examples such as the speed-limit protest but also more significant institutional conflicts, ranging from Senate filibusters to state anti-abortion measures to employee work-to-rule actions. Moreover, it can refract some light back on debates over civil disobedience….

Certain acts of protest do not involve “disobedience” in the sense of a breach of law, and yet neither are they easily accommodated within familiar models of lawful dissent. Recall the speed-limit protesters discussed in the Introduction. They were not civil disobedients. By driving fifty-five miles per hour (without occupying the breakdown lane, obstructing emergency vehicles, or violating any other relevant directives), they deliberately stayed within the limits of the law. And while abiding by the law is itself nothing special, the conspicuous law-abidingness of the motorists’ action was a striking feature; it displayed an extraordinary attentiveness to the rules on the books, as against common practice and widely shared sense of desirable practice. Demonstrations, boycotts, pickets, and other traditional types of protest may conform to the law as well, but the manner in which they do so is not likewise an ironic or constitutive aspect of their resistance.

Canvassing other areas of law, we find many more examples of actors engaging in a practice that seems to be a looking-glass version of civil disobedience: challenging a legal or policy scheme by adhering, in methodical yet unexpected ways, to its formal provisions. Like the speed-limit protest, some of these examples involve hyperbolic compliance with authoritative commands. Employees with grievances occasionally use a tactic that has nearly the opposite character of walking out on the job. “Working to rule,” they do exactly what they are told, adhere exactly to safety protocols, or report to and depart from the premises exactly on time. After collective bargaining between American Airlines and its pilots failed in 2012, for instance, the pilots began to file incessant — and technically mandatory — maintenance requests. Rather than violate company policies or industry regulations to make a point about their value to the airline, they complied in a rigid and highly disruptive manner.

Other examples involve maximalist uses of codified rights to “crash” or “flood” a system. In 1966, Columbia University sociologists Richard Cloward and Frances Fox Piven wrote a famous article in The Nation that called for “a massive drive to recruit the poor onto the welfare rolls” in order to “precipitate a profound financial and political crisis” that would lead to a replacement of welfare with “a guaranteed annual income and thus an end to poverty.” Cloward and Piven’s plan eschewed legal fraud or trickery. Instead, it sought to exploit the “vast discrepancy . . . between the benefits to which people are entitled under public welfare programs and the sums which they actually receive.” If millions of eligible poor people could be mobilized to claim their statutory due, Cloward and Piven thought the welfare system would collapse, its moral and material inadequacies laid bare.

Still other examples involve the actions of government officials, including their creation of new laws. In recent years, several states have enacted legislation mandating that all medication-induced abortions adhere strictly to a regimen approved (but not required) by the Food and Drug Administration (FDA) in 2000. Evidence-based medicine generated a less onerous alternative protocol after 2000, and the vast majority of abortion providers have not followed the FDA-approved regimen for more than a decade. Although the challenge to abortion rights is clear, proponents of this legislation feign obsequiousness to federal authority, insisting that they are merely hewing to the health and safety standards established by the U.S. government….

[Likewise, m]any taxpayers and toll-payers, for instance, have communicated criticism by paying the required sum in low-denomination coins. Whereas work-to-rule provokes by fixating on the precise terms of an instruction, this tactic takes advantage of the fact that official directives invariably fail to address various matters. Under certain conditions, the resulting silences can then be filled in antagonistic yet lawful ways….

Legal provocation is not limited to actions taken by lay citizens or their lawyers. Government officials and entities can engage in it too. One virtue of the concept of uncivil obedience, in our view, is that it helps illuminate methodological continuities across public and private dissent.

We will consider the special case of subnational legislation shortly. But the most easily recognizable form of legal provocation in government may be the maximalist enforcement tactics that have been adopted by certain chief executives. Just as full compliance is not common or desirable in many areas of law, neither is full enforcement. Without a specific legislative instruction to do so, there is little reason to expect that an executive will implement any given authority or prosecute any given prohibition to a T, at the inevitable cost of depleting resources available for other responsibilities. Full enforcement, consequently, may be seen as upending rather than perfecting the existing socio-legal order.

For example, when Theodore Roosevelt became head of the New York Police Commission in the 1890s, he began to strictly enforce laws that required saloons to close on Sundays. Previously, the laws had been rarely and selectively enforced, according to Roosevelt, “to blackmail and browbeat the saloon keepers who were not the slaves of Tammany Hall.” Roosevelt contended that his approach might precipitate repeal of the Sunday closing law, and furthermore “prevent the Legislature from passing laws which are not meant to be enforced.” He thus instantiated President Ulysses Grant’s dictum: “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”

Executive nonenforcement of the law, in contrast, will not as a general matter qualify as legal provocation. In the American constitutional system, a policy of presidential nonenforcement runs straight into the Take Care Clause and its requirement “that the Laws be faithfully executed.” Some believe that nonenforcement can be justified when the law at issue is clearly unconstitutional or in other circumstances. But if a policy of nonenforcement provokes, it is not because it flaunts its formal legality but rather because it flirts so brazenly with illegality. Jury nullification is similar in this regard, at least in the many jurisdictions where its lawfulness is denied by judges and other authorities. (In those jurisdictions where the jury’s power to nullify is recognized in the constitution or otherwise clearly established, an explicit and reform-minded scheme of nullification — such as Paul Butler’s proposal to remedy the racial impact of our drug laws — could count as uncivil obedience.)

While nonenforcement usually will not provoke in the necessary manner, practices that are similar in effect, but different in their legal posture, may do so. Consider the case of “big waiver.” In recent years, the executive branch has seized on broad waiver provisions in federal statutes to dramatically alter the regulatory landscape. The No Child Left Behind Act of 2001, for instance, authorizes the Secretary of Education to “waive any statutory or regulatory requirement” of the Act, with limited exceptions. The Obama Administration has seized on this authority to grant more than forty states waivers from the Act’s onerous requirements — and, in so doing, has required this supermajority of states to conform to its vision of sound educational policy. Frustrated by Congress’s failure to amend No Child Left Behind, the executive has effected “nearly wholesale administrative revision” of the statute, all pursuant to the express terms of the statute. …

Finally, it bears mention that legal provocation may occur within, and not just by, institutions of government. We can see this vividly in the modern U.S. Senate. In recent years, minority-party Senators have relied on a host of procedural privileges to undermine measures that have already become law or are on course to doing so. These Senators have demanded that the entire text of lengthy bills be read aloud on the Senate floor. They have made “seemingly endless quorum calls and motions to reconsider previous votes.” They have used the filibuster in a routine matter, rather than in its traditional and, in the view of many, intended capacity as “the tool of last resort.” They have likewise used “holds” to stymie nominations and bills on an unprecedented scale. Together with allies in the House of Representatives, several of them have deployed still more unorthodox maneuvers in a campaign to defund “Obamacare.” Although their criticisms are pitched in the language of conscience and crisis and their tactics defy longstanding conventions, the Senators who engage in these behaviors have emphasized the formal legality of their obstructionism. They have waged their campaign to undermine the majority agenda not as law-breakers but as legal mavens, devotees and defenders of the procedural rulebook….

[Conclusion:] Whatever the fate of civil disobedience, this Article has suggested that its legalistic doppelganger is alive and well — and an increasingly prominent element in American politics. Moreover, uncivil obedience may be thriving in part because of the very developments that have marginalized civil disobedience. Even as the proliferation of rights language in statutes, constitutions, and judicial decisions has limited opportunities for conscientious law-breaking in the service of basic liberties, it has simultaneously expanded opportunities for disruptive modes of adherence and implementation. The denser and more detailed the law on the books, the more rules there will be for protesters to exploit in technically valid yet subversive ways. This Article is a first pass at investigating this phenomenon. Scholars, activists, and regulators alike will need to continue the study of uncivil obedience if they wish to reckon with the full possibilities and problems of dissent in the years to come.

[Via H-Law, we have the following call for papers.]

Law and Legal Cultures Network Panels at the German Studies Association's Thirty-Ninth Annual Conference in Washington, DC, October 1-4, 2015.

Organizers:
Professor Sace Elder, Department of History, Eastern Illinois University (seelder(at)eiu.edu)
Professor Todd Herzog, Department of German Studies, University of Cincinnati (Todd.Herzog(at)uc.edu)

The Law and Legal Cultures Network of the German Studies Association seeks to foster an extended interdisciplinary conversation on the law. We construe law and legal cultures broadly to mean the creation, administration, or use of law of any type (commercial, property, family, criminal, etc.); the ways in which laws function within society; the failure of law to fulfill its basic social purposes (for example, under the National Socialist regime); the use of law to either sustain or overcome any type of social inequality or injustice; and cultural studies of law and justice.

All periods of German and Central European history are welcome, as are papers in English or German. We encourage submission of individual papers as well as entire panels. While the GSA prefers complete panels, we hope to combine papers sent to us into complete panels and send them along to the GSA organizers.

Please submit a 250 word abstract and a brief CV by January 20, 2015 to the network’s email address: gsa.law.culture@gmail.com. Interested presenters are encouraged to contact the organizers with any questions.

Note:  One must be a member of the GSA by February 16, 2015 to submit a proposal for the annual conference. All applicants to the Network series will be notified in advance of this deadline of the status of their proposals to the Network.

Judge Richard Posner is probably one of the most well-known and quoted appellate judges around. He's an excellent writer as well, and I enjoy many of his books and his rulings, though when he gets things wrong, he seems to get them so very, very wrong. When he's on, he's great. For example, his recent attack on copyright trolling and defending the public domain was great. He's also been good on patents. But... on surveillance he seems all too eager to side with the government.

Given that, there was little surprise that at a recent conference on cybercrime, Posner unloaded with some of his more ridiculous beliefs, essentially saying that the NSA should be able to spy on whoever they want because "national security" is more important than privacy (or the 4th Amendment, apparently):

“I think privacy is actually overvalued,” Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, said during a conference about privacy and cybercrime in Washington, D.C., Thursday.

“Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct,” Posner added. “Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.”

Ah, the old "if you've done nothing wrong, you've got nothing to hide" trope. If that's true, then it does make you wonder what Posner himself is hiding. As Dave Maass pointed out, Judge Posner has redacted the name of his trust on his financial disclosure form. Posner doubled down on this by claiming that if someone looked at his mobile phone, they'd just find pictures of his cat and nothing too important:

“If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text,” he said. “What’s the big deal?

“Other people must have really exciting stuff,” Posner added. “Do they narrate their adulteries, or something like that?”

No, they may not narrate their adulteries, but they may actually give away lots of information that, say, could be used to suggest adultery, which might then be used to blackmail someone. Or to push them to commit suicide.

Or to just embarrass them. To take an example that Judge Posner might actually relate to, his fellow appellate court judge (and about equal in "famous judge" stature) Alex Kozinski. Back in 2007, a disgruntled lawyer figured out a way to reach a personal web server that Judge Kozinski used to store random "funny things" he found online, including some "racy" images. The press picked up on the story and went crazy about this judge who apparently was keeping "obscene" images, including one that the press repeatedly claimed showed "bestiality." This was all over the press, including the LA Times. If you want to see the "bestiality" video, you can view it here on YouTube.

The point being, Kozinski wasn't really doing anything "wrong" (other than not properly securing his own personal web server). And yet someone (a lawyer unhappy with Kozinski) was able to take what he found on that web server, which was basically some jokey videos and pictures, and turn it into a big (and misleading) deal in the mainstream media, leading to a panel of federal judges having to do a full investigation. Yes, eventually they cleared Kozinski, but the point remains: if someone wants to make your life hell, and can get access to stuff you wanted kept "private," they can often do so. Even if you're a famous, big shot, appellate court judge.

Even worse, as Glenn Greenwald reminds us, Judge Posner is a complete and total hypocrite on this issue -- in a 2011 case concerning whether or not citizens have a First Amendment right to film the police, Posner was suddenly worried about the police's right to privacy:

JUDGE POSNER: Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.

ACLU attorney Richard O’Brien: Is that a bad thing, your honor?

JUDGE POSNER: Yes, it is a bad thing. There is such a thing as privacy.

Apparently it only applies to those in power, though. If there's any better demonstration of the privilege of the rich and powerful, it's difficult to think of an example that beats Judge Posner poo-pooing the idea that the public should be concerned about the NSA and its surveillance powers.

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A few weeks ago, my mom called. This is not in itself unusual, and she had important news: she’d sighted the Barefoot Contessa and her husband on the self-checkout line at the supermarket. I was naturally interested, but I happened to be in the middle of something. I was about to excuse myself when she said, in tones of great distress, “Oh God. Oh no.”

“What?” I said, alarmed. “Is everything okay? What is it?” 

Her reply was muffled.

“What is it?” I repeated. “Are you okay?”

“Yes,” she said, once again audible. “But … there’s a really nice glove on the ground.”

I was silent.

“I picked it up,” she continued. “Should I take it to the police?”

It was hard not to think about the time my maternal grandfather had rescued a half-eaten sourdough bread bowl from off the beach. Or the time the same grandfather had braked so hard he nearly caused an accident because he needed to retrieve a tennis ball he’d spotted by the side of the road. Or, for that matter, the many sheds that scarred his property, built to house all these spoils. “We’ll never do that to you,” my mother promised, when she and my dad mounted a large tag sale last summer. (Boxes retrieved from the attic included those labeled GERMAN POW BOOKENDS and MISC. SMALL TREASURES.)

I chose to forget this depressing incident, and largely succeeded. We spoke numerous times in the following weeks, and the glove did not come up again. Then, a few nights ago, I met her for dinner at a German restaurant in Manhattan. It was filled with evergreens, and the festive atmosphere and hearty food were a perfect fit for the weather. In the course of the evening, we talked frankly about challenges in my life and hers, her family’s history of migraines and depression. We laughed a lot and shared a single entrée, as is our wont. 

Late in the meal, I went to the ladies’ room. When I returned, there was a brown suede glove sitting on the table. My heart sank. 

“What’s that?” I said suspiciously, although I knew full well. 

“It’s the glove,” she said. “The one I found on the street.”

“Why are you carrying it in your purse?” I said.

“In case I find the owner,” she said, not meeting my eyes, “or something.” As she spoke she slipped the glove onto her left hand. “You see how fine it is,” she said dreamily. “It has shearling lining. Would you like it?”

“No, I would not,” I said severely. 

The next morning, I took a walk through the park. I had paused to snip a clandestine sprig of holly from a bush just beyond the fence when my eye was caught by something at the edge of the path: a black leather glove. 

Rarely in life are we offered such a clear choice. And I will admit, my first impulse was to snatch it up. But instead, here is what I did: I tucked it into a crack in the fence near where it had fallen, so it was visible from the path. And on second thought, I decided not to snatch that sprig of holly. 

From an email that I received earlier today:

The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST.  The Law Review will extend offers for publication by December 8, 2014.  All authors who submit articles to this program agree to accept a publication offer, should one be extended.  For more information and submission instructions, visit this description.

James Willard Hurst with Student, 1975 (credit)

[We have the following announcement.]

The J. Willard Hurst Summer Institute in Legal History is a biennial event sponsored by the Institute for Legal Studies in conjunction with the American Society for Legal History (ASLH). Each Hurst Institute is organized and chaired by a well-known legal historian and includes visiting senior scholars who lead specialized sessions. For each Institute, a committee appointed by the ASLH reviews applications from beginning faculty members, doctoral students with completed or almost completed dissertations, and recent J.D. graduates, and selects 12 junior scholars from around the world as Institute Fellows.  The Fellows come to Madison for two weeks to participate in seminars, meet other legal historians, and discuss their own work. The two-week program is structured but informal, and features discussions of core readings in legal history and analysis of the work of the participants in the Institute.  More.