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Abstract:
Are Internet advertisers trespassing on our computers? The question arises due to the increasing reliance upon cookie technology by Internet advertising firms as the primary means to match online ads with the specific interests and characteristics of individual Internet users.

It seems that whenever we visit a Web site, we are barraged with an increasing number of blinking banner advertisements hocking products and services of every imaginable sort. More than sixty billion advertisements per month are carefully selected for us and sent to our computers by a single Internet advertising firm, DoubleClick, Inc. In order to increase the effectiveness of the ads, DoubleClick deposits small text files or "cookies" on our computers in addition to sending us the banner advertisements. Like most other Internet advertisers, DoubleClick uses cookie files to collect and maintain detailed consumer profiles that reflect the online practices, preferences and other personal characteristics of each individual who surfs the Web. Based on those detailed consumer profiles, DoubleClick places on the pages of affiliated sites various banner advertisements of client companies that target the specific interests of individuals who happen to visit any DoubleClick affiliated site. Since its inception, DoubleClick alone has placed hundreds of billions of targeted banner advertisements for client companies on sites across the Internet and some estimate that those ads have been viewed by a majority of all Internet users.

The project here is to address in a rather comprehensive fashion the simple question of whether the use of cookie technology exposes Internet advertisers to liability on trespass to chattels grounds. In light of the current reticence of courts to interpret existing federal statutes in a manner that covers cookies, an investigation of how common law tort principles might apply to cookie technology seems especially important. In the end, the examination reveals that a very strong case supports imposing liability on DoubleClick and other Internet advertisers based on a common law theory of trespass to chattels. And while the purpose here is not to suggest that common law claims should supplant statutory causes of action, framing a claim based on common law trespass to chattels principles could provide certain strategic advantages that a statutory framework might not afford.

Internet, Computers, Trespass, Advertising, Technology, Common Law, Privacy, Cookies

Abstract:
Being out is not like being pregnant. You can hardly be a little bit pregnant, but gay people can - and many do - live with varying degrees of openness about their sexuality in different spheres of their lives. With that in mind, what concerns should gay law teachers take into account before deciding to embrace publicly their sexual orientation? Do law professors have some special duty to disclose (or conceal) their sexual identity? What risks do gay teachers face in coming out to their students and colleagues?

In To Be or Not to Be . . . Out in the Academy, Professor Michael Siebecker attempts to address those questions from a highly personal perspective, as a gay man at the start of a law teaching career. Much of the literature addressing gay identity, however, reduces the complexity of issues to a few - though not necessarily easy to understand - theoretical propositions. That approach seems somewhat ironic, because much of that same scholarship advocates the need to invest academic discourse with personal perspectives and narratives. Moreover, little attention has been paid to how an individual reading the literature might attempt to wade through the hodgepodge of often conflicting principles and theories, each of which purports to provide clear direction on how to act. In contrast, Prof. Siebecker's article involves a kind of vivisection. Based on his own values, commitments and experiences, Prof. Siebecker confronts a variety of arguments culled from the literature, such as the claim that simply being gay imposes on him some special academic responsibilities to pursue gay legal scholarship or to incorporate gay legal perspectives into traditional law courses. In the end, the article provides a highly personal critique of entrenched notions of gay identity, community, pedagogy and legal scholarship.

gay, glbt, sexual orientation, legal education, coming out, critical legal studies, pedagogy

Abstract:
Does the First Amendment shield politically tinged corporate speech from the compelled disclosure and reporting requirements embedded in the U.S. securities laws? The question arises in the securities regulation context because of an impending jurisprudential train wreck between the Supreme Court's commercial speech doctrine and its approach to corporate political speech. As corporations begin mixing commercial messages with political commentary, First Amendment jurisprudence simply provides insufficient guidance on the role government should play in regulating that speech. Although First Amendment jurisprudence generally counsels against governmental restrictions on corporate political speech without regard to the truth or falsity of the message, a different branch of that same jurisprudence suggests governmental regulation of commercial speech remains essential to ensure consumers receive accurate information and to maintain market efficiency. Unfortunately, the Supreme Court has never articulated sufficiently clear definitions of "commercial" or "political" speech, or the boundaries between them, to address claims of politically tinged corporate speech. Because the securities laws essentially operate through content based regulation of compelled speech, which often touches inherently political matters, the securities laws seem especially vulnerable to constitutional attack.

Considering the limitations of current speech jurisprudence, this Article examines whether the "institutional approach" to the First Amendment advocated by Frederick Schauer provides a theoretical basis for maintaining a robust securities regulation regime. Following that approach, a determination of speech rights in any particular institutional setting should depend on an assessment of the societal importance of the institution as well as the relationship between speech rights and the institution's basic role. The Article concludes that an institutional approach to First Amendment jurisprudence not only provides sufficiently strong reasons for insulating the securities regulation regime from the First Amendment's reach, but also lends strong support for embracing a new institutional approach to First Amendment jurisprudence itself.

First Amendment, Commercial Speech, Securities Regulation, Corporate Governance, Jurisprudence, Institutionalism

Abstract:
This Article represents the second installment in a three-part series designed to articulate a New Institutional approach to corporate speech that could foil the otherwise inevitable collision between the commercial speech doctrine and the Supreme Court's disparate approach to corporate political speech.

The problem arises because corporations are attempting to escape regulation or liability in a variety of settings by investing commercial messages with just enough political content to render the amalgam of politically tinged corporate speech fully protected under the First Amendment. Why would this strategy work? If corporate speech is political, existing Supreme Court jurisprudence suggests that government should play almost no role in regulating the speech, regardless of its truth or falsity. In contrast, if the corporate speech is commercial, the commercial speech doctrine permits governmental regulation to ensure consumers and investors receive truthful information. This dichotomy in the Supreme Court's approach creates a perverse incentive for corporations to engage in an artful alchemy of mixing just enough political content with otherwise commercial speech to garner the most stringent constitutional protection. As corporations practice that alchemy with increasing frequency and sophistication, a wide array of regulatory regimes face potential constitutional attack.

The first Article in the series, Corporate Speech, Securities Regulation and an Institutional Approach to the First Amendment, 48 WM. & MARY L. REV. 613 (2006), brought to light the impending jurisprudential train wreck in the realm of securities regulation and suggested that an institutional analysis of speech rights might prevent the collision. In this second work, the project is to construct a comprehensive philosophical and methodological framework for a New Institutional approach to corporate speech jurisprudence that courts could adopt as cases of politically tinged corporate speech arise in other contexts. The project emphasizes a multidisciplinary approach to institutional theory, utilizing concepts culled from works in political science, sociology, economics and the law. The third Article in the series will demonstrate how to implement the analytical construct and methodologies described here by marshalling fresh empirical data and arguments to solve a pressing corporate speech problem.

First Amendment, Commercial Speech, Corporate Political Speech, Jurisprudence, Institutional Theory

Abstract:
Could embracing the philosophy of “encapsulated trust” as the basis for a fiduciary duty of disclosure improve the integrity and effectiveness of corporate communications? The question arises because a tragedy of transparency threatens the viability of the burgeoning corporate social responsibility (CSR) movement, where consumers and investors employ various social, environmental, or ethical screening criteria before purchasing a company's stock or products. In an efficient market, fully informed consumers and investors could reward companies that engage in CSR by purchasing their products or stock and, conversely, punish companies that fail to engage in desired practices by refusing to purchase their products or stock. Unfortunately, corporations are increasingly engaging in a sort of “strategic ambiguity” in their public communications - an ambiguity made possible by a variety of static yet inconsistent standards regarding the collection, auditing, and dissemination of information regarding CSR practices. Consumers and investors simply cannot trust the existing disclosure regime to provide reliable information necessary to monitor CSR compliance. That lack of trust will cause the market for CSR to collapse, as consumers and investors stop offering rewards for responsible business behavior.

The Article suggests solving that disclosure tragedy by using the philosophy of “encapsulated trust” to reshape the existing fiduciary duties governing officers and directors. In simple terms, encapsulated trust constitutes a rational expectation that others will take our interests into account when determining what course of action to pursue. Applied in the context of corporate disclosures on CSR, encapsulated trust would require officers and directors to demonstrate they took into account shareholder preferences regarding the timing, content, and form of corporate disclosures. In essence, the duty is a process-based standard that relies on continual discourse to improve the integrity of disclosure practices. In contrast to static statutory disclosure rules, an emphasis on improved discourse between the corporations and shareholders would promote greater efficiency in corporate communication by attending more accurately to evolving consumer and investor disclosure preferences. Moreover, the focus on greater discourse within the corporate setting would also lead to enhanced ethical practices by corporate actors and their counsel.

Trust, Efficiency, Disclosure, Fiduciary Duties, Corporate Social Responsibility, Discourse