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January|February 2006
Uncover Me By Judy Coleman
Elsewhere
Church and Overstated By Winnifred Fallers Sullivan
Quarterback Sneak By Andy Latack

Elsewhere

Social network theory, a network theory of citation, and network television's legal utopia. These and other technological advances from the nation's law reviews.

Enterprising Scholarship

In the introduction to their new book, Robert Chaires and Bradley Chilton boldly pose a question that no academic has posed before: "What trekkie has not heard the slur, 'get a life'?" The question is rhetorical. Their book, Star Trek: Visions of Law and Justice, sets out to address a different query: What can the television series tell us about the law? A lot, say the authors. To their peers in the academy who would mock Trek Studies, Chaires and Chilton decree, "To say that Star Trek was just a television show is akin to saying Shakespeare just wrote plays."

Chaires and Chilton, professors at the University of Nevada, Reno, and the University of North Texas, respectively, have compiled what they call "a Star Trek marketplace of ideas." Some of the articles in the anthology are original, some were first published in law reviews, and some are written by the editors (Chilton's "Star Trek and Stare Decisis," for example).

Perhaps the most important article in the volume is the one that seems to have inaugurated the Trek Studies field: "The Law of the Federation: Images of Law, Lawyers, and the Legal System in Star Trek: The Next Generation," originally published in The University of Toledo Law Review. The article focuses not on the original series but on its first spin-off, known to fans as ST:TNG. As the authors note, the spin-off enjoyed a longer run than the original series and thus had more time to develop its jurisprudence (the original series was only on the air for a scant three seasons, though it enjoyed Vulcan-like longevity in syndication).

In "The Law of the Federation," Paul Joseph and Sharon Carton survey the legal landscape of ST:TNG, which is set in the 24th century. It's a different system from our own, mostly because the show takes place in a utopian future. Legal proceedings aboard the Enterprise tend to be informal affairs, with no need for lawyers in most cases.

Occasionally, however, a defendant insists on the antiquated formalities of a trial. Through these proceedings, we learn that Federation law has cribbed the basics from United States criminal law. The Federation mandates "that accused persons are innocent until proven guilty, that there must be evidence of guilt to proceed against an accused, and that an accused cannot be forced to be a witness against himself."

Joseph and Carton generally write approvingly of the show's jurisprudence, though they do have some criticisms. In one episode, ship naïf Wesley Crusher accidentally disturbs a flower garden while taking some R&R on Rubicam III. Unfortunately for the young ensign, there's only one penalty for law-breaking on that planet: execution. Eventually, Captain Picard is forced to beam Crusher to safety. The authors note that Picard wouldn't have needed to take such drastic action if Star Fleet had a sensible extradition policy. Journal of Criminal Justice and Popular Culture, Volume 8, Number 1; The University of Toledo Law Review, Volume 24, Number 1

Ties that Bind

The buzzing field of social networks analysis attempts to quantify how people know one another. In a recent article, Lior Strahilevitz suggests that social networks analysis can help judges presiding over privacy lawsuits decide what information should be considered private.

In the U.S., a plaintiff can sue someone who broadly and offensively distributes private information about him, provided it's information in which the public has no legitimate interest (for example, by publishing details of a plaintiff's sexual history). Strahilevitz notes, however, that the line between what's public and what's private is often hard to draw. Under many state laws, if a person discloses sensitive information in one social context, like a meeting of Alcoholics Anonymous, that doesn't mean he has surrendered his right to keep the information private in other contexts, like the workplace. Strahilevitz believes that while courts often correctly decide what should be considered private, their answers "seem to rely on guesswork more than anything else."

Strahilevitz suggests that courts could add rigor to their decisions by distinguishing between "weak" and "strong" ties in a plaintiff's social network. Even if we share information with those we're strongly tied to, like a sibling, it should still be considered private, Strahilevitz writes. Information we share with those we're weakly tied to, like the person we meet on an airplane, should generally be considered public. In a 1994 case, an HIV-positive man spoke about AIDS for a local TV program in Georgia under the condition that the station hide his identity when it broadcast the story. The station failed to do so effectively, and the man sued. Though the man had shared his status in an HIV peer-support group, a Georgia court found that he had a reasonable expectation of privacy nonetheless.

Strahilevitz's approach would allow judges in such cases to supplement their gut feelings with an analytic tool, though he acknowledges the practical difficulties of using it. "The world is a complicated place," he cautions, and many of the "rules" of social networks theory cannot be mechanically applied. Classifying links as strong or weak isn't a science. Social networks are constantly in flux, and often it's the sharing of private information that transforms a weak link into a strong one. University of Chicago Law Review, Volume 72, Number 3

Cite Lines

Scholars often resort to metaphor to describe the complex structures of legal authority. See, for instance, "How Long Is the Coastline of the Law? Thoughts on the Fractal Nature of Legal Systems" or Bramble Bush: On Our Law and Its Study. Thomas A. Smith, a law professor at the University of San Diego, advocates instead for the precision of network theory. Smith notes that networks are crucial to understanding many other disciplines: the cellular network in biology, for example, or networks of producers and consumers in economics. The lattice of cases, opinions, and statutes—all connected by citations—is a network as well, Smith argues. But little has been done to visualize it, or investigate how it works.

Through collaborations with LexisNexis, software engineers, and math and computer science professors, Smith has started to chart how those cases, opinions, and statutes connect to one another. Influence, he's found, tends to reside with a relatively small number of cases: It seems that you need citations in order to get citations. In a study of more than four million federal and state cases, almost a quarter were cited just once before lapsing into obscurity. Among all Supreme Court cases, 56 percent of the citations were made to just 2 percent of the cases. Meanwhile, in law reviews, nearly 80 percent of citations refer to just 17 percent of the 385,000 articles from 726 journals in Smith's sample.

Smith suggests that the law has grown into a large network that organizes itself into small clusters of influence. He believes that mapping the Web of Law, as he calls it, will change our understanding of how precedents emerge and evolve. The repeated citations of so few cases—and the lack of citation to so many others—might cause judges to think differently about how they rule in a given case. If ruling justly would establish an unsound precedent, but the judge realizes that his precedent is unlikely to be noticed, he may feel liberated to do the right thing. I/S: A Journal of Law and Policy for the Information Society, Volume 2, Number 2

On Memos

Two years ago, Jonas L. Blank, a summer associate at Skadden, Arps, accidentally sent an e-mail to around 40 people in the firm, including 20 partners. It read, in part: "I'm busy doing jack shit. Went to a nice 2hr sushi lunch today at Sushi Zen. Nice place. Spent the rest of the day typing emails and bullshitting with people."

The missive spread quickly though the legal community and beyond, with its circulation boosted by a story about it in The New Yorker's "Talk of the Town." That same year, a partner in the London office of Dewey Ballantine, another high-profile New York firm, responded firm-wide to an e-mail query asking whether anyone wanted to adopt a puppy by imploring, "Don't let them go to a Chinese restaurant." That message ended up in The New York Times, which explained, archly, "It is rare but not unheard-of for dog to appear on the menu in a restaurant in China."

Maintaining a firm's good reputation has become a good deal more difficult in the age of the Internet, when expensive efforts to create a commanding corporate identity and to recruit the best and brightest can be undermined by a single errant "reply-all." It's not just that technology has made such gaffes easier to make; the web has also made them harder to outlive. These days, law students cross-reference what they hear about firms from recruiters and career advisers with what they read on sites like Vault.com, a website dedicated to collecting the "inside scoop" on major law firms. In a recent article in Stanford Technology Law Review, T. Colpan and L. R. Skibell explore the dangers to firm reputations in the digital age.

According to the authors, law firms should respond to damaging declarations—true or so-called "cybersmears"—as public companies do: They counter incriminating evidence with quick, public assertions of either contrition or innocence. Colpan and Skibell found that law firms, on the other hand, have typically elected to ignore negative posts and press. In response to the "puppy memo," for instance, Dewey Ballantine demanded that the offending partner circulate an apology e-mail—an appropriate internal response, but one that did little to address the blot on the firm's public reputation. The authors recommend that law firms hire public relations firms, alert them to be on the lookout for websites airing the firm's dirty laundry—and ask them to be ready with the Woolite. Stanford Technology Law Review, 2005, Number 2

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