Living midway between the Javits Convention Center, where the New York Auto Show is, and Madison Square Garden, where the Ringling Bros. Circus is now, my quiet(?) little neighborhood is becoming somewhat a circus itself right now. (N.B. this picture was taken directly in front of my apartment building but, thankfully, is not the norm. That was the first and only time I have heard the doorman say "THE BUILDING IS SECURE" as I left the elevator; also the first and only time I have seen the gates in front of the building closed and locked. Needless to say, that was a night made for staying in and enjoying the view from 170 feet above.)

Anyway, the sidewalks are mobbed and the Lincoln Tunnel is constantly backed up about as bad as it ever gets. On the plus side, street food vendors venture a lot further west every year during the auto show, meaning I can get dried-out pretzels and hot dogs that have sat in warm pork byproduct watery sludge all day directly across the street from my apartment. Er...so much for the plus side.

Tonight when I came home and opened my mailbox, I found the latest edition of the Courier-Gazette from Newark, NY, where I lived from 5th grade through high school. Their headlines often help me keep focus on the important things in life. The series of headlining articles on the rampant garden gnome theft a couple of years back is a good example.

Today's front page (today for me at least - it's the March 11th edition, as out-of-towners have a several day lag) features inter alia the headline"Rotary to serve pancakes." Newark Rotary's largest annual fundraiser, with over 1,000 attendees last year, is a not just a great cause, but a bargain at $4 for all-you-can-eat pancakes, sausage, applesause, muffins, and beverages. In middle school and high school, I went to a number of Newark Rotary Club meetings, always at the Newark Quality Inn. And Newark always benefited from the Rotary Club's exchange student program. Alas, I'll be staying in New York City and cannot go, but I wish them the best this Saturday. And, if you're in the area March 19th, by all means go.

An article in today's Wall Street Journal quotes the following, in opposition to providers' restrictions to using other cell phone networks abroad: "Carriers try to bully you... But you own the device, and you should be able to use it anywhere you want." Sure, you own the device, but that doesn't necessarily mean that you also have the right to DO whatever you want with its applications.

Software is licensed to consumers, not owned by them, meaning that your use is always subject to the terms of the licensing agreement. Although you own the device, the software running on it is owned by the software company, not you. If you only have software from the cell phone manufacturer, you've probably got a good argument that you can use it on other providers' networks. But to the extent that the software on your phone is that of your provider, they retain control over the acceptable uses of the software, and could reasonably restrict to use only on their network. If your phone only contains providers' logos, default settings, etc. that work with the original software, you're still in the clear. But if the software that makes the phone "work" on the network is the provider's, then your argument is pretty much sunk.

I suspect the degree of manufacturer versus provider software on a phone --and how integral which company's software is to actual operation as a phone --instead of just convenience and special features-- varies among different phones and providers. Thus, while you do "own" the phone, you only have limited flexibility in its use -- and the degree of that flexibility is case-specific. Of course, in addition to fair uses, you could always write your own software for the phone.

When the gay marriage cases eventually work their way through through the Supreme Court, it will be interesting to see the tack taken by Justice Stevens. While his liberal view of the issue will almost certainly be the basis for his decision, he made a statement in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) that may have to be explained.

Simply put, the case dealt with whether a company that offers full health coverage to all of its male and female employees with the exception of pregnancy coverage for the wives of its male workers violates the Pregnancy Discrimination Act. Justice Stevens, writing for a 7-2 majority, stated: "The pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex. And since the sex of the spouse is always the opposite of the sex of the employee, it follows inexorably that discrimination against female spouses in the provision of fringe benefits is also discrimination against male employees." Obviously the interesting language is that providing that the sex of the spouse is always the opposite of the sex of the employee at issue.

Would the reasoning in this case have to be different today? And, in making this assumption, has the court backed itself into a corner on the issue of gay marriage? The answer is almost assuredly no, but it is certainly an interesting point of irony for one of the Court's most liberal justices.

I'll be presenting a paper entitled Harry Potter and the Legal Philosopher at the Power of Stories law & literature conference in Gloucester, England in July. More details will follow, but it promises to be an interesting time and papers are to be published in a symposium edition of the Texas Wesleyan Law Review.

UPDATE: I have been invited to instead join (and will be joining) a panel discussion on the Harry Potter books at the conference with a bunch (~10) of law professors. The full program is now up.

The Eastern Economics Association 2005 Conference is this weekend (Friday, Saturday Sunday, 04-06 March). I'll be presenting a paper on deregulatory takings on Saturday at 4 (session 166). I'll also be the discussant for a paper by Nicky Tynan (Dickinson College) in that session.

There's a new bill to curtail municipal internet access in Texas. Yes, municipal internet access will affect ISPs, but how much? I'd expect that a lot of municipal access would still be contracted out to large ISPs anyway, especially in smaller, less-populated cities and towns. And internet service isn't like sewage - just because there's municipal service doesn't mean that lots of people and even more businesses wouldn't be very willing to continue paying for service that was far superior - say, service that was twice as fast.

Municipal internet service also holds the potential to allow more and more government services to be provided exclusively online, saving lots of taxpayers' money. The costs of computers are low and getting lower. Sure, you can always pay big bucks for the newest technology, but you can also go onto craigslist and pick up used computer on the cheap. As the world shifts to putting its most important functions online, it only makes sense that municipalities should be allowed, if they want to, to provide free access.

The U.S. Court of Appeals for the Sixth Circuit recently decided not to rehear en banc the case of Cuno v. DaimlerChrysler, 386 F.3d 738 (6th Cir. 2004), which involved a challenge to Toledo's local tax system encouraging development in economically depressed areas under the Dormant Commerce Clause. Because the chances of the Supreme Court granting certiorari are low, this decision will most likely skew the circuit's Commerce Clause jurisprudence for many years to come.

Reacting to the fact that several school districts in and around Toledo were experiencing severe financial difficulties, the city and those school districts used the power granted to them by the Ohio legislature to enact two taxes that would help boost the amount of tax revenues the school districts and municipalities took in. The first, an investment tax credit that gives a taxpayer a nonrefundable credit against the taxpayer's state corporate franchise tax on the new equipment if the taxpayer "purchases new manufacturing machinery and equipment during the qualifying period, provided that the new manufacturing machinery and equipment are installed in [Ohio]," was found to be unconstitutional under the Dormant Commerce Clause. The second, a personal property tax exemption, was not.

The basis for finding the constitutional violation was that the investment tax coerces a business to expand operations in Ohio at the expense of other states (particularly Michigan in this case). The basic premise of the Dormant Commerce Clause is that, because Congress is given the sole authority under the U.S. Constitution to regulate interstate commerce, the states cannot enact laws that burden interstate commerce. Prime examples are states that tax more heavily products that are made in another state or charge out-of-state ships more to travel the state's waterways than in-state ships, thus discouraging persons and companies from doing business in another state. In continuing the shipyard theme, the Sixth Circuit missed the boat on this decision.

While the investment tax does certainly provide an incentive to companies to expand in Ohio, it does not prevent the company from expanding in other states as well. Toledo does not tax more heavily companies that do not expand operations in Ohio or those companies that expand in states other than Ohio—the tax liability of those companies remains steady. The state and local laws also do not prevent other states from enacting similar legislation providing for tax breaks on investment in equipment and machinery. Finally, it does not coerce businesses into pulling up stakes in their current state and move to Ohio. In short, this investment tax does nothing to discourage companies from expanding operations elsewhere and engaging in interstate commerce, which is the ultimate inquiry in a Dormant Commerce Clause analysis.

The Dormant Commerce Clause seems to be at its zenith in Ohio at the moment. Let us hope that the Supreme Court sees through the Sixth Circuit's attempt to strengthen the federal interest at stake by weakening the states' interest in promoting growth at home.

So what does the phrase "against the law" really mean? We hear the term constantly, but with little or no explanation of what it means. I suppose it's clearest in the criminal context. If an act is prohibited by criminal statutes, then its being "against the law" would translate into bearing the risk of jail time for committing the act. But even in the context of crimes, we wouldn't always say (at least not before conviction) that some act --or especially an omission-- for which someone was convicted and jailed was "against the law." Think about Martha Stewart who was NOT an "insider" and thus could not be convicted of insider trading, yet went to jail, essentially for lying (while NOT under oath) about doing something that wasn't illegal. Lots of people wouldn't have said that such a lie was "against the law" before her conviction, even though they might have a moral objection to lying.

But we usually hear the phrase as it relates to things that are not crimes at all, but civil causes of action, as most court cases are. Thus when I infringe your copyright, we say that it's "against the law." But it isn't "against the law" in the same way that my murder of you is. The prosecutor of a crime has a duty to prosecute alleged criminals, but there is no such parallel in civil suits. In fact, the courts encourage outside settlement. In the copyright example, it's most desirable for all parties (including the courts) that I pay you for the infringement rather than you having to sue me. So it seems that in the civil context, "against the law" only means that I am doing something for which you might choose to take action against me in court. But, just about any act or omission could be a tort. Again, there are plenty of things that aren't "against the law" that you might nonetheless haul me into court for, to even greater cost to me and benefit to you (e.g. divorce).

So what do you do when you ask someone to watch your dog, but your erstwhile friend instead keeps your best friend? Bring trover for Rover, of course!