Later this week my real estate law class turns to the topic of real estate finance, from which it is a brief stroll–maybe even a short stumble–to sub-prime mortgages, collapse of the housing market, the worldwide recession, Wall Street malfeasance, borrower irresponsibility, mortgage broker greed, and all the other stuff that dominated the news a few years ago, but now is fading into the mists. (Charles Ferguson’s remarks during his Academy Award acceptance speech for Inside Job show he hasn’t forgotten.) A blessing of living in the information age is–duh–that there is lots of information. A lot of crap, but a lot of gold–books like The Big Short by Michael Lewis, House of Cards by William D. Cohan, Too Big to Fail by Andrew Ross Sorkin, articles (all from Vanity Fair) like Michael Lewis’s Wall Street on the Tundra, The Man Who Crashed the World, and Beware of Greeks Bearing Bonds (the subject doesn’t matter–Lewis is always worth reading), and podcasts. Two, from This American Life, present clear and interesting overviews of sub-prime mortgage generation and securitization and their relationship to the capital markets: The Giant Pool of Money, originally aired 9 May 09, and Return to the Giant Pool of Money, originally aired 25 Sep 09.
And videos. A student recommended this terrific 11-minute animated explanation of the origins of the credit crisis. As the accompanying notes acknowledge it leaves out a few things, but that’s a quibble. It’s remarkably clear and concise.
Curious about the “secret” recipe for Coca-Cola? This American Life recently was “surprised to come across a 1979 newspaper article with what looked like the original recipe for Coke. Talking to historian Mark Pendergrast, author of For God, Country and Coca-Cola, we were even more surprised when we found reasons to believe the recipe is real.” This entertaining radio story is here.
The Baltimore Sun reports that when he reapplied for his former job 29-year old correctional officer Robert Collins was forced to divulge his Facebook password and “watch as his personal page and its postings were perused by an investigator.” Collins considered this to invade his privacy and complained to the ACLU, which led to the Maryland Division of Corrections “backing off, saying it will suspend such demands for 45 days during a review of the matter.”
What will they learn in 45 days they don’t know now? Maybe the DOC thinks that’s long enough for this issue to fall off the radar.
Should employers have the right to look at the Facebook posts, pages, and pictures of prospective employees?
I drove north from Boston yesterday afternoon in driving 40 degree rain. A few miles beyond the Maine Turnpike tolls the rain turned to sleet. Two hundred yards ahead–not close enough to threaten collision, close enough to make my heart race–a sedan spun out in the left lane and skidded, back-end first, across three lanes of highway, stopping 20 yards off the shoulder in deep snow. Somehow it didn’t hit another vehicle. I considered stopping to help, call police, console, but a short distance beyond the sedan was a state police cruiser helping another vehicle that had skidded off the road. I saw a dozen more vehicles that had skidded off the highway, their paths marked by swerving tire tracks through the snow. By the time I exited the highway the road surface was less treacherous and the storm was over. I passed a man and snowblower clearing foot-deep snow from his driveway. “That’s odd” I thought. “That snow is so deep–he must not have cleared it for weeks.” What was odd was how long it took me to acknowledge the obvious. This storm, only rain in Boston, dumped a foot of snow in this area of Maine. The camp road was plowed up to my driveway, the entrance to which was blocked by a three-foot high berm of plowed snow.
God invented 4-wheel drive for moments like this. I punched through the snow, negotiated the driveway, and arrived at the house–where I stepped from the cab into calf-deep snow. No boots, no gloves, no hat. Why did I need them? It was raining when I left home. I had to shovel out the front door to get into the house.
It’s worth it. Winter in the Boston area is frozen piles of dirt-blackened snow, plates of ice seemingly welded to road surfaces, the long, slow, painful wait for a thaw. Winter in Maine is this:
Last Sundays NYTimes ran great story about the “dirty little secrets” of search optimization. Curious about J.C. Penny’s remarkably high-ranking during the holiday shopping season for a variety of searches (<grommet top curtains>?) the Times engaged an online search expert to figure out why. His conclusion: it was “‘Actually, it’s the most ambitious attempt I’ve ever heard of. This whole thing just blew me away. Especially for such a major brand. You’d think they would have people around them that would know better.” Someone–not it, said J.C. Penney, which fired its SEO consultant–“paid to have thousands of links placed on hundreds of sites scattered around the Web, all of which lead directly to JCPenney.com.” Said the Times, “[w]hen you read the enormous list of sites with Penney links, the landscape of the Internet acquires a whole new topography. It starts to seem like a city with a few familiar, well-kept buildings, surrounded by millions of hovels kept upright for no purpose other than the ads that are painted on their walls.”
millions of hovels kept upright for no purpose other than the ads that are painted on their walls–cyberspace, John Perry Barlow’s “new home of Mind,” circa 2011.
The Missouri jury that acquitted Elizabeth Thrasher on a felony charge of cyberbullying said the prosecutors proved every element of the crime, save one: proof of the victim’s emotional harm. The victim testified that after Thrasher posted the victim’s photos, cell phone number, and other personal information on a Craigslist “casual encounters” site she received phone calls, texts, and photos from men who seen the posting, and that one man came to the restaurant where she worked. The victim also testified that she feared being raped and killed. This first-person testimony was not enough for the jury; they wanted third-party testimony to corroborate the victim’s emotional distress. The prosecutors did not think their case required more testimony on the victim’s harm: “We didn’t feel it was necessary to go on any further to prove what comes out of her mouth based on the assumption that most people would be distressed to have their personal information put on Craigslist.”
I listen regularly to a few podcasts–This American Life (for many years), The History of Rome, New York Times Book Review are regulars. Some I’ve dropped from the rotation, like New Yorker: Out Loud (now I listen only to those that grab my attention) and The Ethicist (you love or you loathe Randy Cohen. I loathe.) Last fall I discovered Radiolab, produced by WNYC. It’s terrific. The shows are well-researched, well-reported, varied, interesting, engaging, funny, emotionally draining–and Radiolab’s tightly-edited multi-voiced opening montage is like a 7-second roller-coaster ride. After listening to a few episodes I downloaded most of the show’s back catalog, which provided my commuting and workout soundtrack for weeks. I caught up on prior seasons and now feel empty–new episodes do not come often enough. Finding Emilie is a gripping narrative, intellectually challenging, and emotionally profound. If you like it, you’ll like Radiolab.
For years I’ve posed this scenario to Intro to Law students: can an employer refuse to hire a new employee or terminate a current employee because they smoke cigarettes? Some students believe employers should be able to hire or fire anyone they want for whatever reason they want. The discrimination and wrongful discharge cases they generate will employ generations of lawyers and HR personnel. Most are appalled with the concept of employers having the right to fire someone for engaging in lawful out-of-work activities. A few see the nexus behind smoking and higher health-care costs. Virtually all assume it’s another far-fetched hypothetical, until I relate actual examples of smokers being rejected for employment or fired just because they are smokers. I make the employers’ arguments until they see the cost-benefit logic, and then I ask if employers can fire you because you smoke cigarettes, can they fire you because you engage in high-risk sports? Eat too much junk food? Don’t eat enough spinach? Are obese? Where does it stop? I promise that such lifestyle discrimination will become more prevalent. (Indeed, a colleague teaches an employment-law seminar titled Lifestyle Discrimination.) My goal is to unsettle them. It works.
I make this promise every semester, yet haven’t seen many cases that back me up. And that explains why I was happy to see the recent NYTimes article Hospitals Shift Smoking Bans to Smoker Bans. It begins–
More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living. . . . The new rules essentially treat cigarettes like an illegal narcotic. Applications now explicitly warn of “tobacco-free hiring,” job seekers must submit to urine tests for nicotine and new employees caught smoking face termination. This shift — from smoke-free to smoker-free workplaces — has prompted sharp debate, even among anti-tobacco groups, over whether the policies establish a troubling precedent of employers intruding into private lives to ban a habit that is legal.
The article focuses on health-care employers, where non-smoking rules may have most appeal, but the principles behind a ban on employing smokers readily support bans for other reasons. I can argue persuasively in favor of such bans, yet agree they establish dangerous precedents. First they came for the smokers, and I didn’t speak out because I wasn’t a smoker . . . (with apologies to Martin Niemöller)
An Ars Technica article titled World’s Total CPU Power: One Human Brain , about the results of research into the question “[h]ow much information can the world transmit, process, and store?” is chock-a-block with fascinating statistics (“Two-way communications handled 65 exabytes in 2007, dwarfed by broadcasting, which sent a whopping 2 zetabytes of data. But, while broadcasting is increasing at a linear rate, the advent of the Internet has given two-way transmissions a big boost, increasing the bytes transmitted by a factor of 29 in just 7 years”) whose import–and meaning, in some cases–I can’t assess. It ends with this:
Lest we get too enamored with our technological prowess, however, the authors make some comparisons with biology. “To put our findings in perspective, the 6.4*1018 instructions per second that human kind can carry out on its general-purpose computers in 2007 are in the same ballpark area as the maximum number of nerve impulses executed by one human brain per second,” they write. Our total storage capacity is the same as an adult human’s DNA. And there are several billion humans on the planet.
I have no ability to assess whether that’s even remotely true. But it’s an awe-inspiring thought.
*Lifetime updates to the Internet Law Casebook to the first person to identify the source of this quotation, without Googling it–in either the trademark or the generic sense.
Missouri’s first post-Megan Meier cyberbullying prosecution ended in the defendant’s acquittal. Elizabeth Thrasher was charged with harassment after a spat with her ex-husband’s girlfriend’s teenage daughter led her to post personal information and photos culled from the daughter’s MySpace page on a Craigslist sex-wanted site. The daughter kicked off the spat by calling Thrasher a “fat fucking bitch” in an email. The Missouri law was enacted after the much-publicized suicide of 13-year old Megan Meier, after Meier was bullied by a neighborhood mother acting through a fictitious MySpace proxy. (I need diagrams to understand these relationships.) Following the acquittal the state prosecutor said “I think there are some difficulties with the statute that were brought to our attention.” If convicted Thrasher faced up to four years imprisonment.