I'm celebrating a big birthday this year. For the kids' birthdays, Lisa has been making neat cakes from the Coolest Birthday Cakes website such as a schoolbus cake, a Curious George cake and a Very Hungry Caterpillar cake. (See my exam question about this website). Lisa asked me what kind of cake that I wanted, and I said I wanted a "Slinky Cake." If you think about it, this is a very tall order, especially because there were no templates at the websites.

Despite the challenge, Lisa outdid herself with her version of the Slinky Cake:

See the full 4.4MB version.

After seeing this set, I bet you'll be ready to join the peace movement too. Sorry that Lisa didn't edit out the more revealing bathtub shots and the duplicates. Some bonus pictures of Dina.

Apologies for the beaming dad subtext of this post. It's been hard to get a nice photo of both kids at once, and impossible to get a good one of all three of us. For now, this is the best we could do:

You might call this a group hug or a Jacob sandwich, but I think that I have an armful of love.

Yesterday, the provost organized a "meet-and-greet" lunch for about a dozen faculty members. Her idea was to create an informal space for faculty to discuss issues with her. As an icebreaker, she asked each attendee to introduce themselves and to say what their passion is. I don't normally think in these terms, but here's how I described them:

1) My intellectual passion is Internet law
2) My true passion is my family
3) My secret passion is slinkies

Lisa has gone crazy with digital scrapbooking, producing a 60+ page tome documenting Jacob and Dina's life over the past 12 months.

In October, the AP ran its results of a comprehensive investigation of sexual predation by teachers. Obviously, if you take a population of individuals as large as teachers (3M public school teachers), some bad actors are unavoidable. Indeed, even if only 0.1% of public school teachers are sexual predators, that's still 3,000 predatory teachers. Even so, the AP story is deeply troubling due to all of the systemic issues that exacerbate the problem, ranging from the culture of silence to the phenomenon of punishing/blaming the victim. As a parent, this is horrifying. It's my job to protect my kids from these types of threats, but my tools to do so are limited--especially when dealing with teachers and their authority/in loco parentis powers. If anyone has thoughts about what I should be doing proactively, I'd welcome them.

California has passed the Name Equality Act of 2007 (AB 102). Hooray! Among other things, this law allows either spouse to change their name upon marriage (or upon registration of a domestic partnership) simply by filling in a blank in the marriage license. See my previous commentary on this law and why it might have saved us $400. I believe this should moot the ACLU lawsuit against California for its discriminatory name change practices.

Meanwhile, the NYT ran an article about the increased complexity of name changes on marriage. The newest trend? Couples outsourcing their name change choice to others, including naming consultants, a survey of their friends and family (using online tools like SurveyMonkey, no less!) and the winner of an inter-family softball game.

Apologies for the implicit beaming-dad nature of this post, but I thought this short video perfectly captured Dina's personality.

Kevin Delaney of the WSJ ran an interesting story about how parents are selecting baby names on their ability to generate distinctive results in the search engines.

As someone who went through a personal re-branding, this is a topic of particular interest. My old name, "Eric Schlachter," was pretty unique. There are relatively few Eric Schlachters in the world, and even fewer with a high public profile. Even today, 10 years after my name change, I own the first 68 results in Google for the search "Eric Schlachter."

However, that high Google-bility came at a significant cost. No one could pronounce or spell "Eric Schlachter," leading to lots of misspelled variations of my name and creating all kinds of endless confusion. In fact, I own the first 14 results in Google for the search "Eric Schlacter" (note the missing second "h").

I must confess that I didn't check the search engines before selecting the name "Eric Goldman." It was pre-Google, and it just didn't occur to me. If I had, I might not have chosen the name. By adopting "Eric Goldman," I opted into a much more common name with low distinctiveness in the search engines. There are plenty of other Eric Goldmans out there (see, e.g., this one), but consider some Eric Goldmans that are especially easy to confuse with me:

* Professor Eric Frederick Goldman, a Princeton professor whose encyclopedia entry describes him as an "American historian, author, and special advisor to President Lyndon B. Johnson from 1963 to 1966."

* Columnist Eric Goldman, a writer about reality TV shows for IGN, located in Brisbane, CA--the exact same building Epinions is located in! (FWIW, his stuff is pretty good; and I read it often because it shows up commingled with my various vanity alerts on the name "Eric Goldman").

* Accountant Eric Goldman from the San Fernando Valley, who owns ericgoldman.com and has rebuffed my previous overture about a possible acquisition.

* Attorney Eric Paul Goldman, an attorney in Oakland, CA.

(Just in case you're wondering, I don't have a middle name--my legal name is Eric Goldman. That's it).

Despite the low distinctiveness of "Eric Goldman," I'm proud to say that today I own the first 7 results in Google for the crowded search term "Eric Goldman" (my experience is that the results of this search fluctuates pretty regularly). My strong placement is hardly an accident. Note to parents googling "Eric Goldman" as part of a precedent check--I plan to defend this turf vigorously!

As for naming my own children, Lisa was wedded to the name "Jacob" from day 1, and Jacob Goldman is a terribly crowded name. To offset this a bit, Jacob's middle name is Marq, a variation that I believe will make him the only Jacob Marq Goldman in the world. (Notice that Google prompts a search for Jacob Marc Goldman). But if he chooses not to use his middle name, he's got a heavy road to top Google placement. Same goes for Dina; lots of Dina Goldmans in the world, but only one Dina Rebecca Goldman so far. Sorry, kids--use your middle name or you're going to have to work hard for top Google placement.

UPDATES:
* Jennifer Laycock thinks precedent checks for baby names are old news. She registered the [first name/middle name].com for her daughter so that the domain name will work post-name changes (such as after marriage).
* If you want to identify trendy names (to adopt or avoid), try the Baby Wizard's NameVoyager.

The California Assembly has passed AB102, the Name Equality Act of 2007. The latest text of the law. The Mercury News article. This law, sponsored by the ACLU and others, is designed to statutorily overturn the discriminatory imbalance between men and women changing their name upon marriage. Let's hope this law gets enacted!

I realize that I'm biased, but I just think this is too cute. Make sure your sound is loud enough to hear Dina.

When my wife and I got married, we discussed our various naming options. (See my brief writeup on this decision). "Traditionally," the wife takes the husband's last name. However, my last name, Schlachter, was long, hard to pronounce and harder to spell. Lisa's last name was Sanger, a much shorter and more elegant name. As a result, we discussed the possibility that I would take her last name.

When we took out our marriage license, we inquired about this option with the clerk. If Lisa had wanted to take "Schlachter," it would be a simple and cheap check-the-box decision on the marriage license. But the clerk informed us that if I wanted to change my name to hers, we would have to get a court order--there was not a mirror-image check-the-box process.

I was shocked by the embedded discrimination in the system that made it easy for a woman to take a man's name, but hard for a man to take a woman's name. This struck me as obviously illegal, but I wasn't in the mood for a fight. Instead, after Lisa and I discussed the value of my taking her name, we decided that if we had to go to court anyway, we would synthesize our own unique name--Goldman, our surnames today. But, this wasn't a cheap decision (it cost us over $400).

Deep down, I've always had some regret that I did not proactively challenge California's discriminatory practice. Fortunately, another thwarted couple showed more initiative. After running into the same brick wall, Diana Bijon and Mike Buday went to the ACLU of Southern California and sought their intervention. The ACLU filed a lawsuit on their behalf last December. As the ACLU Press Release says:

"California has the perfect marriage application for the 17th century, and this relic belongs in the trash with laws that forced women to change their names when they married,” said ACLU/SC legal director Mark Rosenbaum.

More on the story from the LA Times (and their editorial), NY Times, Sacramento Bee (editorial), Bitch PhD, Deliciously_Naughty, and Second Nature.

I am 100% convinced that the courts will strike down California's current discriminatory practice if California doesn't unilaterally fix it beforehand. (As Kip says, "As a question of constitutional law, this isn't even close"). Kudos to Bijon, Buday and the ACLU for fighting the good fight to correct this vestige of historical discrimination.

UPDATE: McClatchy runs an update. The "Department of Health Services denies that the current process for changing one's name after marriage discriminates against men" based on a hypertechnical interpretation of the meaning of the name change box on the marriage license. From first-hand experience, I can confirm that I needed a court order to change my name with various financial institutions. At the same time, Assemblywoman Fiona Ma is introducing AB102 to allow reciprocal treatment. The article quotes a NOW representative as saying she "doubted that AB102 would prompt massive numbers of men to take their wife's last name," which I'm sure is true, but for those who make this choice, they shouldn't have to run a gauntlet.

Jacob turned four last week. After a birthday party at his school, where he got to wear a crown, we had a birthday party for him in our backyard--it was 70 degrees, sunny and beautiful. At Jacob's request, Lisa made him a "schoolbus cake" using a recipe from the Internet. Lisa's parents flew up from Palm Springs, so you'll see photos of them enjoying our farmer's market (with lots of produce still in season despite being mid-November) and playing with Dina in the pool. See the photos.

Photos from our trip to Bob's Pumpkin Farm in Half Moon Bay (more on that soon), the obligatory Dina-with-chocolate-face photos, and other goodies here.

Over 100 unedited family photos for your perusal. Among others, I like the Dina tush shot, the Dina thumbs up, and the sequence showing the (messy) interaction of a one year old baby and a piece of ice cream cake. For the record, I purchased the Hawaiian outfits (on my trip to Hawaii in August) for the kids, but even I--Mr. No-Fashion-Sense--know that it's not a good idea to combine a tie dye shirt, Hawaiian shorts, and pastel blue Croc shoes.

Hard to believe it, but Dina turned 1. I'm sorry to say that I've been remiss about disseminating photos of her. I feel guilty for succumbing to second child syndrome. Despite that, if you want the latest poorly edited photo gallery, see here. Apologies in advance for Jacob's nudity.

We celebrated Dina's birthday with a gathering of my parents, my sister and brother-in-law, and their two daughters. We enjoyed Pizz'a Chicago, the haul from our farmer's market excursion, and Carvel ice cream cake on our patio during another picture-perfect California afternoon. Dina consumed her ice cream cake as only a 1-year-old can. Fortunately, we were outside, so we just put her and her high chair in the grass and hosed her/it down.

Goldman Sachs has filed a UDRP action with NAF for the domain goldmansex.com, which right now (according to the news reports--I haven't confirmed...) provides links to strip clubs and escort agencies. I'm pretty skeptical that there's a lot of confusion (or even overflow traffic) from the Goldman Sachs brand. If anything, i suspect I have a stronger basis to complain than Goldman Sachs does!

UPDATE: Goldman Sachs won its UDRP proceeding. The panelist was pretty casual about the similarity determination.

Starting next academic year, I'll be an Assistant Professor at Santa Clara University School of Law and the Director of the school's High Technology Law Institute. In my administrative role, I will provide academic direction and leadership to the school's intellectual property and technology law programs, working in cooperation with the institute's executive director, Jenny Lynn Cox, and others. The school has been a long-time leader in intellectual property and technology law (including a #4 ranking in this year's US News & World Reports specialty ranking of IP programs, if such rankings matter), and I am looking forward to contributing to, and building on, that rich tradition.

The official school announcement.

Some FAQs about my change:

Why are you moving? Our #1 motivation was to be closer to our family, all of which lives in California. This move takes us within 5 miles of my sister and her family and driving distance of our parents. Being close to family has innumerable benefits--our kids will grow up close to their family, especially their cousins; my wife and I can leave the kids with the grandparents for short trips; we can spend mid-semester holidays like Passover and Thanksgiving with family; and we won't have to make convoluted plans to visit family in multiple locations during brief vacations. And, not incidentally, no more frozen airplanes traveling back to California.

Prior to Milwaukee, my wife and I lived in the Bay Area, so we are returning home in that sense. Among other benefits, we are looking forward to reconnecting with the professional and personal social networks that we left behind when we moved to Milwaukee.

As for the law school, I taught Cyberspace Law there as an adjunct for 6 years, which I've always considered one of my top professional experiences. The school has a lot of students, faculty members and alumni interested in my research areas, and the school's location (in the heart of the Silicon Valley) will have some benefits as well.

Finally, we are looking forward to resuming a Californian lifestyle, like choosing among a good variety of vegetarian restaurants and being able to enjoy outdoor activities all year round.

You must be excited! We are thrilled, but the decision is bittersweet. Marquette has been a wonderful environment for me, and both my wife and I formed a lot of great relationships in Milwaukee that are tough to leave.

When are you moving? Our move date depends on when we can sell our house in Milwaukee and find a house in the Bay Area. Unfortunately, the housing market is soft in Milwaukee and tight in our target areas in the Bay Area, so both ends of our move are complicated. As a result, our move date could be anywhere between May and August.

Where are you going to live? Right now, we're focusing on Palo Alto and Los Altos.

The Bay Area will be a very expensive place to live. There are many hidden costs to living in Milwaukee, so the overall cost of living between the Bay Area and Milwaukee is comparable with one major exception: the purchase price of houses. Currently we live in a 50+ year old house with 3 bedrooms, 2 baths and 2000 square feet in a great school district with a 15 mile commute. We expect to buy a home in California with very similar attributes, which we think will cost us quadruple the sales price of our Milwaukee house.

It appears that the new status symbol for moms is a baby blog. Two examples from our friends Alex and Lara and Erin and Josh. My wife reads them regularly. But she doesn't read my blogs, which (I must confess) is a little tough on the ego. When cornered, her first response: "I don't know where your blogs are located." (Try Googling "eric goldman blog" or looking at the signature line of every email I send). Quickly recognizing the weakness of that retort, she went for the jugular: "I'd read your blogs if you wrote about something interesting." Other people's babies = interesting; husband's own writing = not!

Congratulations to my colleague Jason Czarnezki on the launch of his new blog, the Empirical Legal Studies blog. According to its first post, "the ELS blog will advance productive and interdisciplinary discourse among empirical legal scholars." Good luck!

My colleague Jason Czarnezki has written a paper entitled Shifting Science, Considered Costs, and Static Statues: The Interpretation of Expansive Legislation where he argues that federal statutory language should be broadly interpreted. This struck me as a wacky argument as applied to the IP and Internet contexts, where broad statutory language can look pretty silly in light of technological evolutions. However, he makes some good points, especially as applied to the environmental contexts where (a) there is an administrative agency backing up Congress, and (b) there can be significant irreparable harm accruing between the time of judicial interpretation and any legislative or administrative agency correction.

The abstract:

"Congress often passes expansive legislation, frequently regulatory statutes, where both the definition of those items being regulated and the mandate have significant breadth. How should these provisions be construed? While it is difficult to establish a model which determines whether to broadly or narrowly construe an expansive statutory provision, factors that impact this choice include the existence of express limitations on the mandate, understandings of congressional intent, avoiding regulation that might do more harm than good, the nature of the regulated item, and intervening circumstances such as new understandings in law, policy or science. This Article sets out to establish how, why, and when courts should broadly interpret expansive legislation. Absent express limitations requiring cost-benefit analysis or technological feasibility, courts should broadly construe expansive legislation because courts are equipped to interpret the mandate, and it should be assumed that Congress, in recognition of changed circumstances, was aware of the breadth of the textual language; whereas courts should allow administrative agencies to narrowly or broadly construe statutory provisions with such limitations subject to Chevron deference."

40 lightly-edited photos, virtually all featuring Jaoob or Dina, from our recent trip to California to visit family and friends.

Lisa uploaded another batch of poorly-edited family photos to Kodak's EasyShare. These photos cover various events related to Jacob's 3rd birthday, as well as Thanksgiving. Watch out--some of the kids pictured are not Goldman products! I particularly like the second photo (where Lisa put a ribbon in Dina's hair) and the third photo with Jacob and his dragon.

When Jacob was born, I built him a personal website for photos and the occasional video. I lovingly edited the photos to capture the best ones of the bunch and provided my summaries (sometimes with my attempt at wry humor).

Dina is 2 months old, but she doesn't have her own website yet. If I don't get my act together, she may never get her own website. For now, the best we have is some hastily-loaded photos of Dina and the family at Kodak's EasyShare. Among the highlights--a trip to the pumpkin patch, various shots of passed-out Dina, fall colors at Schlitz Audubon, and a little trick-or-treating. However, Lisa didn't do any badly-needed editing of the uploaded photos, so enjoy the good ones and ignore the crummy ones.

Marianna Moss is a friend (as well as the wife of my colleague Scott). She and some of her colleagues are running an interesting blog about working mothers that I recommend you check out if you're in the target audience. Keep up the great work, Marianna!

As a parent, my actions have the effect of modeling behavior for my 3 year old son. For example, my son requests his own section of the newspaper to read during breakfast because that's what Daddy does.

I'm cognizant of this influence, so some of my vices (like watching TV or drinking soda) wait until after his bedtime. However, there's no way that I can avoid Internet time during his waking hours. First, I'm an addict; second, there are times when I try (mostly unsuccessfully) to work at home for the day; third, I am a workaholic, so all of my "hobbies" invariably involve using the computer. Consequently, my son sees me in front of the computer a lot.

This may not be a good thing. On Sunday, I tried to do some work at home and my son stood behind me, watching me as I worked on the computer. Every time I looked away (or even tried to interact with him), he told me "Keep reading" or "Keep going, Daddy." Then, this morning as we were sitting at the breakfast table, he spontaneously ordered me (as only a 3 year old can): "Daddy, read at the computer!" In fact, he wanted me to get up from the table and go use the computer--and when I did so, he giggled with delight. What have I done???

The eBay/Shopping.com merger has closed. Congratulations to all involved. In honor of the merger, I wore my original eBay-logoed T-shirt from 1999 during Dina's birth. (In the old days, I had worn an Epinions shirt during Jacob's birth).

Lisa, Eric and Jacob are pleased to welcome a baby girl to our family:

Dina Rebecca Goldman
Born August 28, 2005, 4 pm
Columbia St. Mary's Hospital, Milwaukee, WI
7 lbs, 4 oz // 19 inches

Everyone is healthy and very happy! Dina looks very much like her brother did when he was born, except that she has a little less hair that's slightly lighter in color.

Photos from the first day (click to see larger version)

My colleague Christine and her compadres at the Conglomerate have been gang tackling the recent Disney opinion. And the New York Times has noticed. Congratulations to Christine and the Conglomerate crew!

My colleague Scott Moss (a frequent commenter on this blog) has posted his latest article to SSRN on the employment-at-will doctrine called "Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will." This article explains how state laws claim to be employment-at-will but then have a variety of exceptions that undercut this simple description. In particular, the article shows the variety and inconsistencies of these various exceptions.

The abstract:

"Employment at-will, the doctrine that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as "essential to free enterprise" and "central to the free market," but in recent years they have riddled the rule with increasing exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at-will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two states illustrates: one state accepts exception X to protect employees while rejecting exception Y to maintain employment at-will; yet on the same rationales, the other accepts exception Y while rejecting X.

This dissonance, undiscussed among legal scholars, has broader implications as to legal doctrine evolution. Inconsistent reliance upon a doctrine betrays judicial ambivalence: discomfort adhering to the rigid rule; discomfort rejecting it; and inability to find an alternative. This is a recurring phenomenon in constitutional law as well, most notably in the Supreme Court's recent treatment of abortion rights and governmental involvement in religion; in both fields, the Court has professed adherence to strict precedents while simultaneously eviscerating them. These examples show that what is happening to employment at-will is not just quirky decision-making, but a common phenomenon in a doctrine's evolution: when courts apply an established rule inconsistently, that may herald a decline, but not necessarily an imminent rejection, of that doctrine; and if courts handle the decline badly, the outcome can be doctrinal chaos.

This Article suggests how courts can retain employment at-will while also lessening the doctrinal incoherence. Courts can recognize a range of employee claims based on a two-part theoretical structure: a broad economic conception of the "public interest," plus the limits of social norm theory. Recent scholarship argues that social norms are powerful protectors of fairness that make employment lawsuits unnecessary; but this Article's analysis of how social norms operate distinguishes settings, like employment, where norms are too weak to substitute for lawsuits, leaving a need for a range of enforceable rights."

My colleague Christine Hurt wrote a column in the Chronicle of Higher Education about her experiences teaching torts. She describes how she led the class in thinking through various harms that people suffer and how the legal system values those harms. This can lead to some grisly but darkly amusing fact patterns, but meanwhile some of her students had first-hand experience with the harms being clinically discussed in class, and for them, their experiences were intensely personal, and far from academic.

This article hits all too close to home. I had the same experience this semester in my Professional Responsibility course, walking a fine line between pointing out the destructive nature of alcohol abuse in the legal profession and acknowledging (sometimes in lame attempts at humor) that students include alcohol in their social activities. But midway during the semester, a student discussed her struggles with alcohol in my office. This made me realize how the points (and "jokes") I had been making in class must have only exacerbated her challenges. I felt truly terrible--but perhaps I needed the reminder that every student comes to class with their our unique experiences and problems, and I have a responsibility to be sensitive to these.

There has been a recent proliferation of blogs with a connection to Marquette University Law School (I've noticed a spike in blog activity around final exam time--blogging is the quintessential way to procrastinate!). Here are the ones I know about:

Conglomerate (Prof. Christine Hurt is a co-blogger)
Rex Holmes’ Blog (Rex is a 3L and the “blogmaster” behind my blogs—thanks, Rex!)
Fsck Law (Matt Goeden is a 3L)
Law on Caffeine (not sure who is running this blog)

Then there are my two blogs:

Technology & Marketing Law Blog
Goldman’s Observations

If I missed any, please let me know so I can update.

UPDATE: I forgot to mention the MULS Federalists blog.

I'm running behind on maintaining Jacob's photos, but I uploaded a bunch (with a video and some letters) to his website (new material under November 2004-January 2005).

My colleague Christine Hurt wrote a paper, the Moral Hazard and the Initial Public Offering, which is now available on Westlaw at 26 cdzlr 711. You can also download an earlier version from SSRN. Christine takes a critical look at the IPO process and persuasively argues that IPOs are a sophisticated pump ‘n’ dump scheme designed to accrue value to the investment banks and institutional buyers at the expense of buyers in the open market. For anyone involved in the IPO process (or just curious), I highly commend the article.