Hall School Research Articles

David Wingate.

David Wingate.

National Trends in Orthopaedic Surgery Resident Adult Case Logs

Our purpose was to assess United States data to determine if there were changes in the number of adult cases that graduating orthopaedic surgery resident logged. We assessed the Accreditation Council for Graduate Medical Education data from 2010 to 2016 to identify the number of cases that were reported by graduating orthopaedic surgery residents through the United States. Specifically, we analyzed the mean total number of adult cases per graduating resident. We substratified the data based on the subspecialty to include total number of cases performed in: (1) upper extremity; (2) lower extremity; (3) spine; (4) oncology; and (5) trauma. All data collection was performed at the Seton Hall School of Health and Medical Sciences. All United States orthopaedic surgery residents were considered participants RESULTS: During the study period, the total number of cases performed by each resident had decreased from 1791 to 1311 (p = 0.0001). There was only an increase in the number of pelvis/hip cases (p = 0.0001). Among upper extremity cases, there was a decrease in each subtype of cases (p = 0.0001). There was a decrease in the number of femur/knee, leg/ankle, and foot/toes cases per resident (p = 0.0001). Furthermore, there was a decrease in the number of spine and trauma cases performed (p = 0.0001). There was no difference in the number of oncology cases performed (p = 0.47). We noted a decrease in the number of cases logged by graduating residents over the past 6 academic years. This provides a great deal of insight into the need for residencies to ensure that the appropriate Accreditation Council for Graduate Medical Education bench marks are met. Future studies should analyze how cases may be increased.

A Forgotten Sisterhood: Pioneering Black Women Educators and Activists in the Jim Crow South by Audrey Thomas McCluskey

Reviewed by: A Forgotten Sisterhood: Pioneering Black Women Educators and Activists in the Jim Crow South by Audrey Thomas McCluskey Mary Ellen Pethel A Forgotten Sisterhood: Pioneering Black Women Educators and Activists in the Jim Crow South. By Audrey Thomas McCluskey. (Lanham, Md., and other cities: Rowman and Littlefield, 2014. Pp. x, 181. $40.00, ISBN 978-1-4422-1138-4.) Arguably the most instrumental and far-reaching reformers of the New South, dozens of African American women formed a “Southern Network” to lead efforts toward racial uplift through education (p. 11). Black female teachers epitomized the tenets and goals of social activism, working within a cultural and political system where they were thrice marginalized as African American, female, and non-elite. Audrey Thomas McCluskey makes a compelling case that four women led this cadre of black women educators to forge a “forgotten sisterhood” that deserves greater memorialization and historical recognition. She also argues that these women, Lucy Craft Laney (1854–1933), Mary McLeod Bethune (1875–1955), Nannie Helen Burroughs (1879–1961), and Charlotte Hawkins Brown (1883–1961), were instrumental in the formation of a black middle class after Reconstruction. The sources McCluskey has consulted are wide-ranging—from letters to interviews to published works, both primary and secondary. Chapter 1 serves as the introduction, providing excellent post–Civil War context. This historical [End Page 190] moment was seized by a generation of young educated black women who founded schools, established powerful organizations such as the National Association of Colored Women, and worked with organizations such as the American Missionary Association and the National Baptist Convention. These four women were fund-raisers, advocates, and activists for their race as well as their gender. As administrators they pursued a hybrid of industrial and liberal arts education that reinforced white definitions of “female purity and domesticity,” while they also fought the oppressive injustice faced by African Americans (p. 8). McCluskey concludes, “Their activism was based in this dual reality” (p. 8). The matriarch of this “Fab Four” was Laney, founder of the Haines Institute in Augusta, Georgia, who often said, “I want to wear out, not rust out” (p. 16). Chapters 2 and 3 describe Laney as a mentor and model for all black female educators. Chapters 4 and 6 provide great insight into the lives of Bethune and Burroughs, respectively. Graduates of Bethune-Cookman College (now University) and the National Training School for Negro Women and Girls, Bethune and Burroughs emerged as self-sufficient wage earners. Chapter 7 emphasizes Brown and Bethune while discussing the networking and collegiality shared by black women who participated in this educational movement. The support of black men and of white men and women was paramount to the success of educational reforms, and McCluskey artfully connects these fascinating and complex relationships. Cumulatively, the book’s content is powerful and should initiate additional research into other schools, nonprofit (club) organizations, alumni, and black educators. However, certain sections of the book are fragmented. Specifically, Chapter 5 is purportedly about Brown and the Palmer Memorial Institute, but the majority of the chapter is just a series of alumni interviews. While interesting, these interviews would have been more effective if incorporated into the narrative about Brown’s position that “black women [were] potentially the most powerful force in solving the racial divide,” which led her to insist on decorum and propriety in addition to rigorous coursework (p. 76). A Forgotten Sisterhood: Pioneering Black Women Educators and Activists in the Jim Crow South adds immensely to existing historiography related to gender, race, class, education, health, and social reform during the post-Reconstruction and the Progressive eras. It should be essential reading for undergraduate and graduate courses. Further scholarship about black women leaders should continue to reconnect readers to women from the past who can serve as inspiration for generations of women to come. Mary Ellen Pethel Belmont University and Harpeth Hall School Copyright © 2016 The Southern Historical Association

Reducing lateness to lessons

When Marple Hall School reviewed lateness levels, they found 883 hours of teaching had been missed in one year due to students not arriving in class on time. Rhian Davies explains how they tackled this

New languages of possibility: early experiments in education as dissent

This paper reviews the work of four early radical educators: the cultural nationalist Rabindranath Tagore (1861–1941), Asia’s first Nobel Laureate; Bertrand Russell (1872–1970), Cambridge mathematician and philosopher; the Irish educationalist and insurgent Patrick Pearse (1879–1916) and Leonard Elmhirst (1893–1975), co-founder of Dartington Hall school in England. Each represents a type of radicalism that is particular to his own era but resonates in twentieth-century educational provision and policy. Each articulated his political vision through the establishment of a school and all contributed to modern pedagogical practice. The paper argues that ideological and methodological similarities not only compel us to consider them as radical founders, whose ideas are in many ways identical, but to identify them as pivotal theorists in early conceptualisations of education as dissent and disengagement, as a means of decoupling thought and habit from the mainstream of educational practice, colonial imposition or curricular conservatism. In particular, the paper concentrates upon the work of the Irish educationalist and political radical Patrick Pearse and, employing his educational writings and practice as a template for dissension, demonstrates that it was both typical of and reflected the wider tone of early formulations of education as dissent.

Case study: Effective inclusion

Continuing our focus on Nasen's Outstanding Schools, we hear from the staff of Swanwick Hall School, which has not excluded a child for four years, about their whole-school, inclusive approach to supporting learners

Round Table on Business, Governance and Society

The editorial policy of Decision places a keen emphasis on engaging with practitioners. It is believed that such an engagement not only enables academia to better cater to the needs of practitioners but also provides scholars with a rich source of new insights and phenomena for researching. Pursuant to this policy, a Round Table on Business, Governance and Society was held at the Indian Institute of Management Calcutta’s premises on the 30 January 2014. Keeping in line with the theme of the special issue, the speakers at this Round Table represented the voices of the other side—the community which has usually been at the receiving end of resource conflicts involving businesses. The three speakers were Mr. Bharat Patel, Mr. Ravi Rebbapragada and Mr. Sanjay Upadhyay. Bharat Patel, is the Secretary of Machimaar Adhikar Sangharsh Sangathan—a grassroots group of fishing communities based in the Bhadreshwar–Mundhra region of Gujarat—engaged in a struggle against the Special Economic Zones (SEZ) in Mundhra. Ravi Rebbapragada, is the Founder of the NGO Samata, associated with the Supreme Court verdict popularly known as the Samata judgment that prevents the sale of land owned by tribal communities to non-tribals. He is also Chairperson of Mines, Minerals and People: a growing alliance of individuals, institutions and communities who are concerned and affected by mining. Sanjay Upadhyay, is a Supreme Court lawyer and the founder of the Envirodefence, a legal firm. Mr. Upadhyay is a Visiting Fellow at the Boalt Hall School of Law, the University of California, Berkeley, and has served as an environmental and development law expert to the World Bank, IUCN, FAO, UNDP, DFID, ILO, the University of Cambridge and Duke University. The discussion was moderated by Nimruji Jammulamadaka, faculty at the Indian Institute of Management, Calcutta. The audience included the faculty and the students of the institute. The following is a transcript of the Round Table. Bharat Patel (BP): Let me begin by telling you about the Gulf of Kutch, where I come from. People like us, the fishing communities in this part of India, are totally dependent on this Gulf. And there are reasons for this. The Gulf of Kutch has very good mangrove forests. It comes next only to Sunderbans in this respect. There are several islands and almost 210 types of marine algae. There are many coral reefs, creeks and estuaries (almost 168 of them). Fishing is good. The production is about 1.4 lakh tonnes annually. India’s first marine national park is located here. It is very rich in bio-diversity, and the gulf is 175 km long and 30 km wide. The condition now is such that, it is not a marine national park; it is a marine industrial park. This gulf has 14 SPMs (single point mooring) from which about 70–80 % of India’s crude imports arrive into the N. Jammulamadaka (&) Behavioural Sciences Group, Indian Institute of Management Calcutta, Kolkata, India e-mail: nimruji@iimcal.ac.in

Business

I was not preparing to be busy. That’s the armor everyone put on to pretend they had a purpose in the world. I refuse to be claimed. Your plate is waiting. We will snip fresh mint into your tea. All of us at the table together. The young writers, the older writers, the readers of all ages, the librarians, guides among books, the Neustadt family, who have championed voices, voices that encouraged us and said we listen and we care. I will try to use your gift in as many ways to help others as I can. That is very important to me, and I will try to be a better writer to deserve it more. I keep feeling so much gratitude for what we are given in our lives. All of us, by way of accident, by way of things we couldn’t have selected ourselves . The worlds we are born into, the people we are related to, the landscapes we learn to love wherever we are. On the terrible day of September 11, 2001, I was in Oklahoma, working at Holland Hall school in Tulsa with some of the kindest people I will ever know. Our grief mingled on that shocking day. Always when I thought about healing, I have thought about your state and the long bus ride home and how the students I was visiting with on that day had been standing up for peace, connectedness, knowing people who are not exactly like them, at the terrible moment we got the news. I think of my beloved friend Grace Paley, one of my favorite writers, who said in one of her stories, “Imagination!” (she often spoke with exclamation points). “That’s one of the gifts hundreds of generations of women and men working, eating, loving, have given us. Why has it been used to break the world apart into smaller and smaller pieces? It couldn’t have been easy to do, because we animals, bugs, trees, are connected to one another by streams of spit, water, necessity. The hard hug of sunlight holds us all and we are attached to this earth by the fact of gravity as well as the invention of love.” The connectors have always been there. What do we do with them? I thought about connection listening to your wonderful Iraqi music photo : pieter stockmans January–February 2014 • 51 Business Naomi Shihab Nye “Syrian refugees go about their business in a refugee camp in Mafraq, Jordan . . .” Ropes on poles, jeans & shirts flapping in wind. He sits on a giant bag of rice, head in hands. Too much or too little, rips & bursts & furrows. Something seared in a pan. If you knew a mother, any mother, you would care for mothers, yes? No. What it is to be lonesome for stacked papers on a desk, under glass globe, brass vase with standing pencils, new orders. How quickly urgencies of doing disappear. And where is the child from the next apartment, whose crying kept him awake these last terrible months? Where do you file this unknowing? Editorial note: To listen to the author read this poem along with musical accompaniment, visit the WLT website (worldliteraturetoday.org). First published in Great River Review (Spring/Summer 2013) and reprinted here by permission of the author. ...

Reform or Revolution: Thoughts on Liberal and Radical Criminologies

THE COURSE TAUGHT JOINTLY BY JONATHAN SIMON AND TONY PLATT AT UC BERKELEY in the Fall of 2012 constitutes a rather exceptional scholarly and pedagogical enterprise. Attractively titled From Community Control to Mass Incarceration, the course soon developed into something closer to a permanent workshop than a simple university class. As news spread that something akin to a rendition of the atmosphere of the defunct Berkeley School of Criminology was being attempted in one of the high-tech classrooms of the just-renovated Boalt Hall School of Law, the audience of the course began to grow and diversify in unforeseen directions. As discussed elsewhere in this issue (Stein, infra), the broad focus of the course could be summarized as an attempt to reconstruct a genealogy of the current US penal crisis through a critical analysis of some of the cultural, political, and discursive struggles that swept the criminological field in the United States during the 1960s and 1970s. This period witnessed--in the span of less than 20 years--first the consolidation of the host of rehabilitative ideologies and practices subsumed by David Garland (1985, 244-64) under the category of penal-welfare complex, and then the quick dismissal of that correctional ethos in favor of a punitive turn that throughout the 1980s and 1990s pursued the systematic warehousing of the black and Latino urban poor (Western 2006; Wacquant 2009; Alexander 2010; Rios 2011). Platt and Simon made this journey in the form of multiple intersecting dialogues: between contemporaries and the past, between different generations of scholars, and, most significantly, between liberal and radical (1) perspectives on the history, present, and future of the US penal crisis. It is precisely on the latter side of this dialogue that I would like to focus my comments. In the opening article of this issue of Social Justice, Jonathan Simon {infra) reaches the interesting conclusion that--however distant the positions expressed by the liberal and radical traditions may have appeared against the highly polarized background of the massive social protests and state repression of the time--ultimately the theoretical distance between these streams of thought remained productively small. After all, Simon seems to suggest, both liberal and radical penal agendas were about to be wiped away by the wave of penal populism and post-civil rights revanchism that would flood the country for the next 30 years. In this view, the advent of mass incarceration, essentially a rejection of any criminologically sound approach to the penal question, would seem to operate retrospectively as a sort of great equalizer between liberal and radical criminological traditions. Observed from the rather exceptional viewpoint of 30 years of draconian penal policies and racialized drug wars in which the United States emerged as the world leader in incarceration, the liberal and radical criminological agendas of the 1960s and 1970s do indeed appear much less distant from each other than they were from the penal catastrophe that would soon unfold. It would be difficult to dispute, for example, that the radical agenda of prison abolition appears less distant from the liberal agenda of prison as a last resort than both are from mass incarceration; or that the radical claim to democratic self-defense against police abuse is closer to the liberal critique of police brutality than they are to the paramilitary style of policing of inner cities during the 1980s and 1990s; or that the radical demand for full recognition of the civil, social, and political rights of prisoners appears less distant from the liberal emphasis on rehabilitation and treatment than both are from the systematic use of solitary confinement in contemporary US prisons. Here I would like to revisit some of the debates that emerged in the Berkeley class and suggest that, despite the undeniable elements of proximity between radical and liberal approaches in light of the punitive revolution of the last three decades, significant contrasts remain between the two. …

Joseph L. Sax: The Realm of the Legal Scholar

It is one of my great regrets that I never really got to know Professor Joseph Sax personally. I joined the faculty at the University of Michigan Law School well over a decade after Sax departed our halls for the University of California at Berkeley’s Boalt Hall School of Law. I met him on one occasion several years ago, when he gave an engaging workshop at Michigan on governance issues around Colorado River water allocation, complete with a detailed map of the watershed. I am exceptionally fortunate, however, to occupy a chair named for him. This is not only because of his major contributions to the creation of environmental law, but because—even viewed at a distance—his career, accomplishments, and legacy are a model of what it can mean to realize one’s potential as a legal scholar. The numerous achievements in environmental law that made Sax a giant in his field have been widely recited elsewhere: his scholarship on the public trust doctrine and on citizen suits was path-breaking, and his scholarship on takings law was frequently cited in the Supreme Court. He was awarded the Blue Planet Prize, sometimes called the Nobel Prize for the environmental sciences, was named a Distinguished University Professor here at Michigan, and wrote an influential environmental protection statute for the State of Michigan. His contributions to law and the environment are legion; later in life he expanded his focus to cultural treasures as well as environmental ones.

The Digitization of Historical Artifacts in a Hospital Library

Creating digital archives for a hospital library can be a rewarding, but daunting task. Establishing a digital archive of historical artifacts is one way that libraries can add value to their institutions. This type of preservation can also bring together communities, increase the visibility of the library, and help library staff learn new skills (1–3). The decision to begin a digital archive is not one to take lightly. Librarians need to consider the guidelines they will use, the technology and equipment involved, intellectual property rights, who will maintain the collection, and what artifacts will go into the collection (Figure 1) (4–7).This article looks at a project taken on by the Northeast Georgia Health System (NGHS) Health Sciences and Resource Center Library and the technology used to create a digital archives collection (Figure 2) The library had limited funds and staff, but worked with others within and outside of the organization to create the online collection. The main piece of technology used was Omeka, which served as the backbone of the project, but other components, including funding, guidelines, software, and marketing, will be discussed. Figure 1 Hall School of Nursing student Figure 2 Hall School of Nursing librarian and students FUNDING The beginning of any project starts with funding. How will technology, equipment, and other items be purchased? Blais and Lamont stated that funding is a basic need for an archives (8). For many archival projects, items to be included in the collection should be owned by the library, either through direct ownership or donations. To digitize these items, libraries will need to purchase the technology and equipment or see if additional donations can be given to the library. The project for the NGHS Library involved having items donated from other departments and seeking funding through awards or grants from outside sources. The Media Services Department within the hospital donated a copy stand for the library to photograph over-sized items. Other departments brought in items that they wished to add to the digital collection (Figure 3). Additional funding was provided by the National Networks of Libraries of Medicine (NN/LM) Southeastern/Atlantic Region through the Express Library Digitization Award (9). There are many other funding opportunities available to libraries for digitization projects, including funding from other NN/LM Regional Medical Libraries, the Institute of Museum and Library Services, the National Endowment for the Humanities, and the American Library Association. Figure 3 Page from 1960s Hall School of Nursing scrapbook GUIDELINES Another factor to consider is the guidelines you will use to create this online archival collection. The NGHS Library used guidelines from the Digital Library of Georgia, Dublin Core Metadata Initiative, and the National Archives and Records Administration (NARA) to guide their decisions and establish what practices would be best for their budget, time, and staff (10–12)). There are, of course, other guidelines to use and consider. Some are from professional organizations, while others are present in articles. Many articles discuss not only the digitization aspect of this type of project, but how to preserve the actual historical object (6, 13). In the article Digital Imaging and Conservation: Model Guidelines, Dean points out that every digital imaging project concerned with the capture of artifacts must involve the preservation of the digital image and the original artifact and, at the very least, digitization should do no harm to the original source document (13). When creating a digital archive will you need to conserve the original piece? Will you be able to store it? What equipment will you have or need to request to meet certain guidelines and standards? What education will staff need to receive? These are all questions that can be brought to your attention through reading different guidelines and best practices. It will also help determine which will be best for your library to abide by.

‘Children are accomplished sand writers, before moving on to pencils and paper’

Maria Neal is the early years co-ordinator at Barlborough Hall School in Derbyshire, which is linked with Makumbi Primary School in Zimbabwe. Maria recently visited the school and saw first-hand how children's writing skills develop from mark-making in the sand.

Authentic Leadership: Having the Courage to Be Yourself

Authentic Leadership: Having the Courage to Be Yourself

Dod Contradicts Dod: An Analysis of the Response to Death in Camp Delta

The Seton Hall School of Law Center for Policy and Research Report, Death in Camp Delta, analyzed the official investigation into the June 9-10, 2006 deaths of three detainees at Guantanamo Bay Naval Base Detention Facility. The Center found a deeply flawed investigation, which failed to resolve serious questions about what really happened that night that resulted in the deaths of three men in U.S. military custody. In response to an article in Harper’s Magazine which built on the Seton Hall study and independently investigated the events at Camp Delta, the Department of Defense (DOD) provided further information. Unfortunately, this response, like the initial investigation itself, is disturbingly flawed. While the response confirms at least some of Seton Hall’s criticisms of the earlier investigation in the course of providing new information, it also contradicts factual claims in its own investigation, raising new questions as to whether the DOD can be trusted to investigate its own conduct. In analyzing the DODs response, the Center finds that:

Contraband Immunity: Updating Amsterdam, LaFave, and White's "Use Exclusion" Proposal to Limit Police Pretext

For decades, legal scholars have struggled with the problem of pretextual searches and seizures. These are defined as police using their power to stop or search or arrest for one crime, usually a minor crime, as a means of triggering the ability to search, without probable cause, for evidence of other crimes. That is, police might stop a person in order to conduct a Terry frisk, or arrest a driver for speeding in order to conduct a search-incident-to-arrest or an inventory search. Police may conduct them hoping to “get lucky” and find evidence of criminality. In short, when used pretextually, protective searches amount to discretionary searches unsupported by probable cause – precisely the government oppression that the Fourth Amendment was framed to protect citizens against. The United States Supreme Court, however, has made pretextual searches permissible under the Fourth Amendment as a result of its unanimous decision in Whren v. United States, 517 U.S. 806 (1996), which held that the subjective motivations of police are irrelevant as long as their conduct is objectively reasonable; therefore, reasonable suspicion of any crime will suffice to * Professor of Law, Florida Coastal School of Law. J.D., Boalt Hall School of Law, University of California, Berkeley. A.B., Dartmouth College. I thank Ron Angerer (FCSL Class of 2013) for his outstanding research assistance. I thank Martin Witt, FCSL Research Librarian, for helping me track down old articles. I thank M.G. Piety for reviewing the draft, and I thank the Berkeley Journal of Criminal Law editors for their excellent work. I thank Dean C. Peter Goplerud for the research grant that helped me finish this article. I thank Boston University School of Law, where much of the research for this article was done when I was a Visiting Associate Professor of Law there from 2008-10. 1 Foley: Contraband Immunity: Updating Amsterdam, LaFave, and White's Use Published by Berkeley Law Scholarship Repository, 2012

COMBING THE ARCHIVE, TRACING THE DIASPORA: THE SCHOLARSHIP OF GERALD HORNE

Previous articleNext article No AccessSYMPOSIUMCOMBING THE ARCHIVE, TRACING THE DIASPORA: THE SCHOLARSHIP OF GERALD HORNEUla TaylorUla Taylor Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of African American History Volume 96, Number 2Spring 2011 A journal of the Association for the Study of African American Life and History Article DOIhttps://doi.org/10.5323/jafriamerhist.96.2.0215 Views: 26Total views on this site Copyright 2011 ASALHPDF download Crossref reports no articles citing this article.

English Sijo: Winners of the Sijo Writing Competition of the Sejong Cultural Society of Chicago

English Sijo:Winners of the Sijo Writing Competition of the Sejong Cultural Society of Chicago Creasy Clauser, Taylor Edwards, Sarah Chen, Sean Alaniz, Jordan Levenstein, Kayee Gallup, and Mary Liza Hartong 2009 Winners First Place Creasy Clauser (Crawfordsville, IN) Southmont High School, 12th grade Untitled A single sole was lost today, deep in the river Yalu,Thrashing, twisting, torn to shreds with color quickly fading.On the bridge a small boy laughs, holding out his empty shoe. Second Place Taylor Edwards (Euless, TX) Trinity High School, 10th grade Secret Song You ask me what I'm humming; I tell you I'm humming about nothing. [End Page 219] This is untrue because I'm humming about you, all day long.Who am I to tell you you're "nothing" when you are my song? Third Place Sarah Chen (Fresh Meadows, NY) Townsend Harris High School, 10th grade Untitled #445 Remember? Mother and son, father, daughter, uncle and aunt,where are they? That horrid bomb, those Americans, they killed them all.What is left? Hiroshima, gone. In internment, my brothers weep. 2010 Winners First Place Sean Alaniz (Tucker, GA) Eaton Acadamy, 12th grade Shift Work Another day at the pet shopGrumpy cats, hyper puppiesAnother puddle, more screaming kidsOne loose bird, two missing ferretsNine o'clock! Not my problem tonightI'm heading home, straight to my bed [End Page 220] Second Place Jordan Levenstein (Jericho, NY) Jericho High School, 12th grade Untitled Oh my god, I love your necklace.Where did you get it? That skirt looks so great on you—you have the best clothing in the school! I hate her so much;I put on such an act when I see her. Third Place Kayee Gallup (Atlanta, GA) Marist School, 12th grade Toothbrush You pick me up, you use me.I am nothing to you but an object.I am tired of the scrubbing and cleaning.You know I have feelings too!Ew, that's gross! Those are anchovies!I never agreed to cleaning your dirty teeth. [End Page 221] Third Place Mary Liza Hartong (Nashville, TN) Harpeth Hall School, 10th grade Untitled Mexico, or rather a beach in the east, suits me quite well.I prefer climates that sing gently like warm mothers, like mine.For western thrills like roller coasters don't soothe like they promise. [End Page 222] Copyright © 2011 President and Fellows of Harvard College

Encryption Source Code and the First Amendment

The First Amendment does not cover all speech acts. It instead extends constitutional protection to media for the communication of ideas, which are forms of social interaction that realize First Amendment values. The constitutional question, therefore, is whether particular uses of source code are embedded within such media. It is insufficient to distinguish, as do current federal regulations, the publication of source code in electronic form from its publication in written form. Instead it is necessary to focus on the social contexts within which source code is used, whether in electronic or written form. From constitutional perspective, it is one thing to use source code to convey ideas to an audience, and it is quite another to use source code to run computer. The article suggests how each of these situations might be constitutionally analyzed. Source code is high level computer language typically used by programmers to compose computer software.1 Federal regulations prohibit the unlicensed of computer software, including source designed 2 to encrypt messages. To post source code to the Internet is in most circumstances to export it under the terms of the regulations.3 Federal regulations do not seek to prohibit the unlicensed of a printed book or other printed material setting forth source code, but © 2000 Robert Post. t Alexander F. and May T. Morrison Professor of Law, Boalt Hall School of Law, University of California, Berkeley. 1. See Bernstein v. United States Dep't of Justice, 176 F.3d 1132, 1140 (9th Cir. 1999), withdrawn pending en banc reh'g, 192 F.3d 1308 (9th Cir. 1999), appeal dismissied without prejudice and remanded, No. 97-16686 (9th Cir. April 11, 2000) [hereinafter Bernstein IV]. 2. See Bernstein v. United States Dep't of State, 974 F. Supp. 1288, 1294-96 (N.D. Cal. 1997) [hereinafter Bernstein 1]. To encrypt message is to make it incomprehensible to someone who does not have the code. Encryption code applies to messages that are sent in digital form. See ANDREW L. SHAPIRO, THE CONTROL REVOLUTION 73 (1999) (Encryption tools... are the locks and keys of the digital age.). 3. See Junger v. Daley, 8 F. Supp. 2d 708, 713 (N.D. Ohio 1998), rev'd and remanded, No. 98-4045, 2000 U.S. App. LEXIS 6161 (6th Cir. April 4, 2000) (Almost any posting of software on the Internet is an export.). BERKELEY TECHNOLOGY LAW JOURNAL they do extend to encryption source code in electronic form or media (e.g., computer diskette or CD ROM).' 4 Daniel J. Bernstein, professor of mathematics, statistics, and computer science, composed an program called Snuffle in source code.5 He wished to present his work on Snuffle within the academic and scientific communities. ' 6 Bernstein brought suit challenging the federal regulations as prior restraint on his ability to speak. The Bernstein case raises the fascinating and controversial question of whether computer programs written in source code can be form of expression for purposes of the First Amendment. Lee Tien's rich and complex article substantially contributes to our understanding of this question. 7 Tien's distinction between and protection, for example, is exactly right.8 To conclude that the First Amendment covers conduct, like the of source is to assert that the constitutionality of the conduct's regulation must be determined by reference to First Amendment doctrine and analysis. To conclude that the conduct is protected by the First Amendment, on the other hand, is to assert that the regulation of the conduct is unconstitutional. The question of First Amendment coverage goes to the threshold issue of the kind of analysis that should be brought to bear in evaluating the constitutionality of state regulations; the question of First Amendment protection goes to the ultimate judgments that we ought to reach in particular case. The threshold question posed by the Bernstein case is whether federal regulation of source code is to be assessed under the doctrines of the First Amendment. This is question of coverage, and it shall be my focus in this brief comment. Bernstein answered this question in the affirmative, holding that the constitutionality of the federal regulations was to be determined by First Amendment principles. A closel ' analogous case, however, has seemingly reached the contrary conclusion. 4. 15 C.F.R. § 734.3 (1999), note to paras. (B)(2) and (B)(3). 5. See Bernstein IV, 176 F.3d at 1135-36. 6. Id. at 1136. 7. Lee Tien, Publishing Software as Speech Act, 15 BERKELEY TECH. L.J. 629 (2000). 8. See Tien, supra note 7, at n.10. Tien draws this distinction from Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REv.

Change and challenge in regulation and governance

Change and challenge in regulation and governance

Book Reviews

Jürgen Lillteicher, Raub, Recht Und Restitution Get access Jürgen Lillteicher, Raub, Recht Und Restitution ( Göttingen: Wallstein 2007) Richard M. Buxbaum Richard M. Buxbaum *Jackson H. Ralston Professor of International Law, Boalt Hall School of Law, University of California at Berkeley Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 56, Issue 1, Winter 2008, Pages 223–225, https://doi.org/10.5131/ajcl.2007.0006 Published: 01 January 2008