« February 05, 2006 - February 11, 2006 | Main | February 19, 2006 - February 25, 2006 »

Jack Balkin on Media Old and New

In this interview, Jack Balkin (law, Yale) has some fascinating thoughts about how blogging interacts with the mainstream media and what the future holds:

Although bloggers like to think of themselves as bravely checking and critiquing old media, and parts of old media still regard bloggers as uncouth, unaccountable, and unreliable, in fact new media and old media (viewed both as a set of distinctive technologies and as a set of persons and social practices) have effectively merged much more than either would care to admit.

Reporters now regularly use bloggers, particularly expert bloggers, as sources for their stories. Newspapers, television networks and newsmagazines increasingly incorporate interactive elements in their online versions, sponsor their own blogs, and provide linkbacks to the blogs that discuss their stories. . . .

Interactivity will transform old media, which will not give up the ghost, but will instead use its considerable political and financial clout to draw important elements of the blogosphere ever closer to it, coopting and transforming them, even though many parts of the blogosphere will always remain beyond old media's grasp. . . .

Of course, the more that old media tries to coopt the blogosphere, the more it will itself be transformed. The result, I am afraid, will not be an unalloyed victory for decentralization or democracy, nor will it represent the end of powerful shapers of public opinion who occasionally abuse their power. Rather, it will instead produce a different distribution of power and a different set of dangers and responsibilities.

Posted by Daniel Solove at 07:12 PM | Comments (1) | TrackBack

How Not to Turn Down a Law Job Offer

Dianna Abdala, a young law school graduate, was about to start working for William Korman, a criminal defense attorney. Shortly before she was to start, Korman told Abdala that he had also decided to hire another attorney, and as a result, had to adjust her salary lower. She sent him the following email:

At this time, I am writing to inform you that I will not be accepting your offer. After careful consideration, I have come to the conclusion that the pay you are offering would neither fulfill me nor support the lifestyle I am living in light of the work I would be doing for you. I have decided instead to work for myself, and reap 100% of the benefits that I sew [sic]. Thank you for the interviews.

Korman called and left a message to Abdala to discuss, but Abdala left a voicemail turning down the offer again. Korman wrote to Abdala:

Given that you had two interviews, were offered and accepted the job (indeed, you had a definite start date), I am surprised that you chose an e-mail and a 9:30 p.m. voicemail message to convey this information to me. It smacks of immaturity and is quite unprofessional. Indeed, I did rely upon your acceptance by ordering stationary and business cards with your name, reformatting a computer and setting up both internal and external e-mails for you here at the office. While I do not quarrel with your reasoning, I am extremely disappointed in the way this played out. I sincerely wish you the best of luck in your future endeavors.

Abdala responded with this email:

A real lawyer would have put the contract into writing and not exercised any such reliance until he did so. Again, thank you.

Korman responded:

Thank you for the refresher course on contracts. This is not a bar exam question. You need to realize that this is a very small legal community, especially the criminal defense bar. Do you really want to start pissing off more experienced lawyers at this early stage of your career?

Abdala's response, via email:

bla bla bla.

Korman forwarded the email exchange to some friends, and soon it had been forwarded throughout cyberspace. It was forwarded to me the other day.

Some thoughts about this saga:

1. Was it appropriate for Korman to forward the snarky email exchange to his friends, especially in this day and age where email can readily take on a life of its own and spread around the world? Many folks in the legal world are well-familiar with the famous email by the Skadden Arps summer associate who accidentally emailed everybody in the firm with an email that began: "I'm busy doing jack shit."

2. A tip -- if you're going to create a snarky email exchange that might get circulated widely, please run spell check. At least spell "blah" correctly.

3. It seems to me as though Abdala had every right to turn down the job offer when the terms were changed significantly. She may even have been justified in being a bit upset over it, but that doesn't excuse the unprofessional manner in which she chose to express herself. And Korman's professionalism is not going to win any awards either.

4. The email is another amazing illustration of social network theory. The email exchange occurred on Feb. 6th, and within a few weeks made it to my email inbox. I don't know Korman or Abdala, but there are definitely less than six degrees of separation. . . .

For their part, Korman and Abdala seem to be taking it all in stride. According to a Massachusetts Lawyers Weekly article:

"I'm hearing from people I haven't heard from in years," Korman laughs. . . .

"I'm not upset at all," Abdala says. "I'm enjoying the notoriety."

UPDATE: Apparently, Abdala is more upset over this than she lets on. According to the Boston Globe:

She said she has reported Korman to the Board of Bar Overseers for ''unprofessional and unethical" conduct for forwarding her e-mail to an outside party. She also said she believes that [the attorney's] remark about Boston's ''small legal community" was tantamount to ''threatening my legal career," and that he circulated the e-mails as a ''cheap ploy to bring more business to his firm." . . . .

''All I did," Korman added, ''was forward a non-privileged, non-client communication to somebody who then chose to forward it along. I really don't see where the ethical breach is."

Hat tip: Marcia Hofmann

Posted by Daniel Solove at 05:26 PM | Comments (14) | TrackBack

Free Cabs, Free Tuition, and the Power of Deregulation

Yesterday's NY Times featured an article about a NY cabbie who offers free rides and apparently cleans up on the generous tips. This reminded me of an experiment conducted by NYU Law a couple years back. A cohort of students were admitted for zero tuition with the hope that they would give more generously as alumni (taking advantage of the federal government's tax deduction subsidy.) This left me wondering: when does this strategy of giving away a product or service ultimately prodcue greater revenue? And relatedly, are there other situations where deregulating behavior - i.e., eliminating a requirement that people behave in some way - might lead to more "good" behavior (defined in the same way as regulators might) on the part of these people.

When does giving away a product produce greater revenue? In the case of the cabbie, I think that people are tipping him beyond the normal fare for a few reasons. First, passengers probably love the choice to pay what they want. They also appreciate the trust he puts in them by allowing them to define the fee. Finally, they probably enjoy the novelty of a free cab ride. My guess is that giving away a product works particularly well where there is a one-on-one relationship between provider and consumer. But perhaps most importantly, the cost of a cab is generally known (most locals probably have an idea of what a meter fare would have been), and that cost is often BELOW actual market value. I can think of many situations - rush hour, rain, etc - in which most cabs could double their fares and still stay full.

The law school give-away offers students one more benefit (beyond choice, trust, and novelty): time. Students have limited income and NYU's program offered students a chance to pay NYU after the six-figure incomes kicked in. But I wonder if the law school experiment is paying off? I think people over-tip the cabbie because they appreciate what he is doing for them, personally. And in the law school context, we're not talking about dropping $20 unnecessarily; it takes serious commitment to get an alum to donate $100K (plus interest). Of course, it helps that Uncle Samuel will subsidize that gift.

What about deregulation? Brown University has no academic distribution requirements. My mother-in-law (with a BA and PhD from ivy-competitor Penn) insists that academic deregulation is irresponsible because students can choose a very narrow curriculum. On the other hand, perhaps students - appreciative of the choice - actually take a wider assortment of classes than they would if there was a particular set requirement. Like the NYU example, this is a testable hypothesis.

This brings me to criminal law. Might the decriminalization of certain acts result in them occuring less frequently? Thiis would probably occur when people commit crimes to punish society for, or to protest, the very act of criminalization. Thus, I can imagine a person with no interest in flag burning choosing to do so to protest a flag burning ban. (I kinda picture Eugene Volokh as just that sort of guy.) Of course, many of these regualtions might be unconstitutional anyway.

Another example might be theft. Can a store reduce theft by announcing "although we don't prosecute shoplifters, please don't steal"? It seems possible, but doubtful. How about a music company that says "we don't forbid free file sharing, but we'd really appreciate it if you'd buy our music instead?" I imagine someone, somewhere, is testing that very approach.

My suspicion is that, on balance, regulation is excellent at assuring distribution. If you want to make sure that the largest number of people behave in a particular way, regulate. But if you're worried more about aggregate positive effects - increasing total revenue, encouraging students to take rich and varied coureloads, and perhaps convincing the queasier file-sharers to spend some dough - maybe deregulation or freebies are worth considering.

Posted by Dan_Filler at 10:42 AM | Comments (2) | TrackBack

EPIC Wins Big Freedom of Information Victory

David Sobel and Marcia Hofmann of the Electronic Privacy Information Center (EPIC) just scored a major victory for freedom of information law. After the New York Times broke the story about the warrantless NSA surveillance program, EPIC filed Freedom of Information Act (FOIA) requests for documents pertaining to the program. Under FOIA, federal agencies are required to provide documents to anybody who requests them. 5 U.S.C. § 522(a). The purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 352, 361 (1976).

The government contended that it could wait indefinitely before producing documents despite the fact that it was required to process the request "as soon as practicable." Apparently, the government believed that "as soon as practicable" meant "all deliberate speed."

Not so, the district court held:

When expedition is appropriate, an agency is obligated to process the request “as soon as practicable.” Here, there is no dispute that EPIC’s FOIA requests are entitled to expedited processing; all four of the DOJ components who received EPIC’s requests have so conceded. Rather, the primary dispute between the parties in this matter is the meaning of the statutory language “as soon as practicable.” . . . .

DOJ argues that the “as soon as practicable” language in the expedited processing provisions should be interpreted to impose no concrete deadline. . . . Under DOJ’s view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests, with the courts playing no role whatsoever in the process. When pressed at the preliminary injunction hearing as to what delay would be excessive enough such that a court could properly invoke its authority to compel production, counsel for DOJ was unable or unwilling to give an answer. . . .

As EPIC suggests, DOJ’s reading of the statute would give the agency unchecked power to drag its feet and “pay lip service” to a requester’s “statutory and regulatory entitlement to expedition.” . . . .

However, "[m]erely raising national security concerns cannot justify unlimited delay." Congress has already weighed the value of prompt disclosure against the risk of mistake by an agency and determined that twenty days is a reasonable time period, absent exceptional circumstances, for an agency to properly process standard FOIA requests. Here, DOJ has not yet made any specific showing that it will not be able to process the documents within the time period sought by EPIC. Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA seeks to further—government openness and accountability.

Related Posts:
1. Solove, How Much Government Secrecy Is Really Necessary?
2. Solove, Beyond His Power: Bush's Authorization of Warrantless NSA Surveillance
3. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?
4. Solove, President Bush, the National Security Agency, and Surveillance

Posted by Daniel Solove at 06:35 PM | Comments (0) | TrackBack

The ABA, Affirmative Blackmail, and Being on Admissions

This week's events (the promulgation of new rules by the ABA on diversity admissions, publication of David Bernstein's op-ed, Affirmative Blackmail, and the ensuing blogospheric discussions) have prompted me to post on a topic that I have been ruminating about for some time: admissions. At the Glom last year, I blogged a series of advice posts (here, here, here and here) from information gleaned after my first year on admissions committee. This is my second year on that committee, and I have to admit that the shiny has worn off a bit for me. I wanted to be on the admissions committee because I wanted to find out why we had classes with low percentages of minority students. Surely there must be some subconscious, yet insidious discrimination creating this result. I was going to ferret out this bias and squash it like a bug. What I found was a problem that I couldn't fix. The problem is math. Prof. Bernstein and Thom Lambert point out that the ABA's new rules show that the ABA has a conscious disregard for the rule of law. I would add that the rules also show a conscious disregard for math. For schools like Marquette, in the middle of the rankings, with a small faculty, administration and budget, cold, hard numbers are our problem when it comes to increasing diversity. Putting aside debates as to whether affirmative action is good, bad, constitutional, unconstitutional or whatever, the most affirmative action-minded admissions committee has to make very difficult choices in an environment of scarcity. Scarcity of applicants; scarcity of dollars.

Marquette's problem is not that we don't admit minority candidates. The percentage of minority candidates in our "admit" pool is larger than the percentage of minority candidates in our "applicant" pool. In fact, the percentage of minority applicants who become admits is larger than the percentage of nonminority applicants who become admits. However, the yield on minority candidates in our "admit" pool is quite low. These candidates have a lot of other opportunities. We do what we can: phone calls, scholarships, letters, emails, dinners, etc. I soon found out that to say that we discriminate against minority candidates is to say that we discriminate against candidates with 170 LSATs. We don't end up with a lot because we don't start out with a lot. And, no matter how many 170 LSATs we admit, our yield on 170 LSATs is very low, similar to our yield on minority candidates. These people have other opportunities, and our recruiting activities don't change that much. If we were ranked higher, our yield would be greater. If our yield were greater, we would be ranked higher. See how that works, ABA?

However, the ABA now says that we are required to do more than just work with what we have. We need to commit resources to increase the number of minority applicants in our applicant pool. For instance, we could have a dedicated diversity admissions person, we could recruit in person at historically black colleges, we could hold minority applicant fairs, and we could have more minority scholarships. At present, our admissions office has one assistant dean and one office administrator. To comply, we would need to basically double our admissions budget. And our scholarship pool.

I teach corporate law, so I follow the recent white-collar prosecutions. Bernard Ebbers was criticized, and eventually punished, for blithely telling subordinates to "hit the numbers" without regard to the consequences. The ABA is also blithely telling law schools to do something without regard to the realities of numbers. I understand that in some situations, schools may have money, time and resources that they don't want to commit to a laudable goal and will not until forced to do so. However, my impression is that many schools like Marquette will be caught in the middle because they actually do not have unlimited money, time and resources.

Posted by Christine_Hurt at 11:15 AM | Comments (6) | TrackBack

Professor for sale

Teaching salaries these days are so bad, it seems like you have to sell the shirt off your back just to make ends meet. Or perhaps rent the shirt off your back. And where would you do this? On eBay -- where else?

French professor Corry Cropper at BYU is doing just that. From Cropper's eBay ad:

Want to get your message to the coveted 18-25 year old market? Coaches aren't the only ones with a marketable presence on campus. I am a well-liked professor at a major university in Provo, Utah and have been here for nearly 10 years.

This semester I am teaching two courses of French literature that meet two days a week. I have a total of 46 students but am seen by many more during the day as I walk between classes and around campus. If you win the auction, I will wear your T-shirt with logo to campus on the days I teach (during class, office hours, lunch, etc.).

If you win the auction, it is your responsibility to mail me the T-shirt in time for classes Feb. 21 & 23, 2006. I cannot wear anything that is offensive in any way and cannot advertise for alcohol or cigarette companies. I reserve the right to refuse to wear the shirt if it is inappropriate but will not charge you if I don't wear it. If you have questions about the appropriateness of the T-shirt, please email me before bidding.

Wow - it's that easy, and a cool $40 is in the bank. (I smell a new revenue stream for law professors everywhere!) However, I have to wonder how this development will be viewed by feminist scholars, race scholars, or property-and-personhood scholars like Margaret Radin. It's all fun and games when you're auctioning off the right to put a logo on a white male, but the dynamic differs drastically when we begin discussing women or members of racial minorities. For majority-group members, deliberately chosing to blur the line between personhood and property may be viewed as a fun and harmless diversion. For historically disadvantaged groups, however, the stakes are very different. The line between personhood and property is a hard-won right for many groups -- members of such groups may have been treated as chattel property in the relatively recent past. This history means that any step towards reconceptualizing these people (again) as property could have negative effects in both perception and reality. (Thus, the classic bachelor auction is easy; the newer bachelorette auction is fraught with tricky fault lines.)

For that reason -- uncertainty of effects on historically disadvantaged groups -- I think that the sale of professors' sartorial space (on eBay or elsewhere) is probably a bad idea.

Posted by Kaimipono at 12:06 AM | Comments (3) | TrackBack

The Future of the Blawging Market

A recent Gallup report (download now when while it is free, or get the summary here) has found that blog traffic has finally leveled off. From the synopsis: "[B]log readership hasn't increased over the past year or so, even though Americans are spending more time online."

What does this mean for blawgs? As we demonstrated here at the Co-Op through our law professor blawging census series, the supply of blawgs increased over 55% last year (that is, 55% alone from June through November) and has continued to grow since then. But that supply doesn't tell us much about the size of the blawg audience (as a subset of the blog audience). An anecdotal look at the 12-month traffic at established sites like the Conglomerate, Prawfs, Is That Legal, and Prof. Bainbridge suggests that traffic has either leveled off or has declined from highs in the early fall, while the VC and Balkin continue to grow. Of course, both growth and decline in absolute traffic numbers doesn't tell us if the universe of blawg readers is growing -- we may be simply slicing the market up differently, or encouraging a fixed set of readers to spend more of their time looking at different blawgs.

At some point, I suppose, this bubble will have to burst. (Although I find it encouraging that we here at the Co-Op are beginning to tap the non-US market.) When traffic flattens or declines, I predict (again) a merger wave between sites perceiving potential intellectual, creative and social synergies. Will a handful of super blawgs end up dominating the marketplace? Time will tell.

Posted by hoffman at 10:19 PM | Comments (4) | TrackBack

Republican Speed-Dating?

I heard a story on Marketplace Morning Report this morning about Occidental College's new speed dating program. It seems that 93% of alumni that marry within the faith - that is, marry fellow alums - give to the college. Thus, the speed dating program provides the Oxy development office two great opportunities: a chance to reconnect with disconnectd alums and the potential to create two-person donation machines.

Of course, college fundraisers aren't the only ones trying to battle intermarriage. Institutional Judaism (for some people that means their local synagogue, for others mom and dad) has been fighting to keep marriages within the faith for years. Recently, the Reform Jewish movement has begun to re-emphasize that while interfaith couples are welcome, synagogues should work to convert the non-Jewish partner. The theory, presumably, is that single faith couples are more likely to share Judaism with the children, and to promote it with greater intensity.

So what about political intermarriage? It seems to me that this cuts both ways. On one hand, politics is evangelical: a Democrat wants to find ways to convert non-Dems to the party. In that sense, intermarriage offers opportunities. If a Republican marries a Democrat, that Democrat may be successful at changing - or at least tempering - his mate's political proclivities. Of course, that's a doubled edged sword: the Republican may transform the Democrat. In the end, I expect the Replicrat Kids will probably be miniature John Breauxs or Lincoln Chafees. So what is a party to do? I suspect the answer is to follow in the footsteps of Occidental: Speed Dating.

When a Republican meets another Republican at a GOP dating event, it produces tremendous good will for the party. Disconnected conservatives may start to see the GOP as a fun gang to be involved with. This might produce more donations as well as more labor at election time. And when romantic stars do align, the newly produced couple will be far more reliable donors, at least if college fundraising is any indicator. In the end, the party will probably be better off encouraging their members to marry within the faith. That pure Republican couple will probably vote Republican with even greater intensity than they did alone (if Cass Sunstein's research on voting patterns among single-party judicial panels is any indicator) and the big pile of donations can then be used to convert those Dems.

Posted by Dan_Filler at 01:50 PM | Comments (2) | TrackBack

The Futures Market and the Enron Trial

The Business Law blog has a short post today on the futures market and the Enron trial. (Shorter: the market thinks the defendants are in deep trouble.) The post, a mere two paragraphs, is worth reading, not least because it notes that Skilling's lawyers have protested that it is "crass to 'trade on human life.'"

This quote reminds me of a statement in a brief by the State of Mississippi about (my former) professor Kip Viscusi's use of cost-benefit analysis in estimating health costs saved by early smoking-related deaths: such calculations were said to be "utterly repugnant to a civilized society.”

Appeals to such moral heuristics are pretty common, but it sure was suprising to see them deployed by the defense team!

Posted by hoffman at 01:49 PM | Comments (1) | TrackBack

Gay Marriage in New Jersey

Courtesy of Howard is this article from Newsday describing the case pending in New Jersey which challenges that state's restriction of marriage to opposite-sex couples. In the interest of full disclosure, I favor allowing gay couples to marry, but I would prefer that decision be made by state legislatures. I am not yet convinced that the Equal Protection Clause of the federal Constitution requires state recognition of gay marriages, though I understand the parallels to Loving v. Virginia.

I am curious to see what the New Jersey Supreme Court does with the case, from a political perspective as well as a legal one. Assume that the court thinks the proper result is to strike down the restriction. Should the court "vote its sincere preferences," as political scientists say, the practical effect in the short term will be a tremendous electoral advantage for the Republicans, as happened in response to the Massachusetts ruling perhaps including the re-election of the President. Surely the last thing the New Jersey Supreme Court wants to do is help Republicans. Heck, that court's decision in the Doug Forrester case in 2002 was far more transparently partisan than any ruling in Bush v. Gore. Some political science suggests that the court will shade its interpretations so as not to antagonize the other branches, which are not accepting of gay marriage, but the evidence is far from conclusive. See, e.g., Jeffrey A Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28 (1997); William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Cal. L. Rev. 613 (1991).

For this reason, however, the court is in a no-win posture. If the court mandates gay marriage, it triggers the ire and votes of Republicans as well as opening itself to criticism for being judicial legislators. If it defeats the claim, it will be accused of doing so for political reasons rather than legal ones. Vermont-style civil unions are another option, though the article reports that New Jersey already grants domestic partnership developments. If the court tries to mandate civil unions its ruling may be the least defensible of all, for it would allow the state to create two classes of couples while effectively conceding that there is no reason not to give homosexual couples all the advantages of marriage.

It's interesting that the provision apparently at issue is the New Jersey Constitution's provision that "all persons are by nature free and independent" -- not any provision explicitly invoking the ideal of "equality." I know nothing of the way in which this clause has been interpreted in the past, but isn't it ironic that the persons invoking the clause want the state to recognize their dependence on their partners, and for the state to recognize a continuing obligation to care for them? Free and independent indeed.

Posted by Mike_Dimino at 09:47 AM | Comments (27) | TrackBack

Should the Democrats Create a "Contract with America"?

A common criticism of the Democrats is that although they are scoring some points when criticizing the Republicans, they are coming up empty in stating what they really stand for. I believe that there is some truth to this criticism. What surprises me is how ineffective the Democrats have often been in rallying around a basic theory; in articulating how specific policies will best advance their goals; and in selling their theory to Americans.

Back in 1994, the Republicans created the “Contract with America,” a document that set forth a list of concrete legislative goals. Perhaps it is time for the Democrats to produce their own Contract with America. I think that doing so would force the Democrats to articulate and rally around a set of concrete policy proposals that provide a clear alternative to the Republicans.

For example, I think that the Democrats need to come up with a plan for addressing security issues. When the Democrats criticize the Bush Administration for its surveillance measures, they need to also propose how they would address security without infringing upon civil liberties or abusing power. For example, they should propose more concrete plans for getting better international cooperation, tracking down loose nukes, and devising surveillance programs that are carried out with judicial oversight within the legal parameters of FISA.

Posted by Daniel Solove at 12:39 AM | Comments (7) | TrackBack

Record-Keeping is Burdensome for Pornographers

I think we're all fully versed as to the costs of some regulation, such as Sarbanes-Oxley, that requires massive record-keeping and certification. However, many in the pornography industry are complaining that the DOJ has instituted record-keeping requirements so complex that it will surely drive them out of a legal business. The requirement? Keep records verifying the age of every employee that shows up on-camera for ten years. WSJ article here. Jeepers! Regulations passed last year require all online purveyors of sexually explicit videos or photographs to retain each subject's birthdate, copy of government-issued ID, and list of aliases used in the industry.

According to the article, owners of websites are up in arms, saying that the DOJ wants to drive their legal adult entertainment sites out of business under the ruse of fighting illegal child pornography. Apparently, some would be performers don't want to use their real names. Some owners of websites don't want to list the address of their home business and announce to the world that they run adult entertainment websites. OK, sorry. But you can't have it both ways.

Legitimate, legal businesses keep records. Every employer I ever had made a copy of my driver license and my social security card. The DOJ can call any legitimate business in the country and ask for proof of the age of its employees, and those employers can comply. Why? Because we have laws, such as child labor laws and tax laws where this information comes in handy. I guess the adult entertainment industry is uninterested in tax laws. How do they file W-2s if they have no actual name of performers? If you want the adult entertainment industry to be legal, then act like one. Obviously, re-sellers of materials are the ones with the larges burden, but they may be carved out of the regulations. I'll leave the far-reaching privacy concerns to Dan, but for now, I'm unsympathetic to complaints of keeping records of employees' identities. Try complying with SOX.

Posted by Christine_Hurt at 01:28 PM | Comments (9) | TrackBack

Blogging and IRB Approval

Do professors need IRB approval to blog?

Institutional Review Board ("IRB") pre-approval is required for projects when members of institutions receiving federal funding conduct research intervening with or identifying the private information of human subjects. "Research" means "a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge." "Human subject" means "a living individual about whom an investigator (whether professional or student) conducting research obtains. “Intervention" "includes communication or interpersonal contact between investigator and subject.” “Private information” is “information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place . . . . Private information must be individually identifiable (i.e., the identity of the subject is or may readily be ascertained by the investigator or associated with the information) in order for obtaining the information to constitute research involving human subjects."

Whew. So, in thinking about this definition, I think the answer is "maybe," but I'm really interested in getting feedback from readers who have much more experience with their IRB board.

Start with the obvious. Were I to be planning to publish a paper, in a law review or otherwise, about my blogging experience, I think I'd probably want to get IRB approval, because part of that experience involves provoking and responding to comments from our readers. Although some might quibble that we’re dealing with texts not people, the better reading of the regulation would seem to be that the nub of what I’d be writing about would be my experiences with other human beings. Some of that project might involve “outing” anonymous visitors/commentators. I think that it is at least arguable that visitors to this site “reasonably expect” that no observation of their “individually identifiable” characteristics is being made – although that “reasonable expectation” in my view is not accurate.

How about a little harder question. Should papers about blogging in general, without a focus on a given Prof’s experience (e.g., an “applied” version of Larry Ribstein's L&E of blogging paper) require IRB approval? Some seem to think so. Thus, before I start the data-collection part of a planned paper about commodification and the process of bringing legal opinions online, I might need to submit an application to the board so that I can talk to folks like Howard, etc.

Now for the real trick. Is blogging itself “research” under the relevant regulations? As far as I can tell, no one has actually done this, and being a believer in the power of large groups of people to be right, I tend to think that the answer must be no. And for most of us, that answer makes sense. I don’t consider this blog to be my scholarship. But there are some folks out there who disagree. I wonder if obtaining institutional “scholarship” credit for blogging would preclude a researcher from claiming that blogging isn’t “research” from an IRB perspective?

Other views on this topic:

1. An interesting listserve exchange.

2. The Association of Internet Research's long PDF on the ethical implications of research on blogging.

Posted by hoffman at 09:35 AM | Comments (5) | TrackBack

1776

I've just finished listening to David McCullough's 1776 and I am very impressed. Though I was a history major in college, I focused on post-Revolutionary, and in particular post-World War II, America. As a result I knew relatively little about the war itself, though of course I knew some about the political philosophy of the founding period.

The book is remarkable in its ability to interest the reader in the personalities of the war, and McCullough does a wonderful job of using quotes from diaries and letters to give one a sense of the lives these soldiers lived.

For better or worse, the book paints a very different picture of General Washington than the one I had previously. McCullough, both for himself and quoting soldiers of the period, criticizes Washington numerous times for his indecisiveness and for several blunders that could have led to the end of the Continental Army and the cause of American independence. Without question Washington was a remarkable leader and an inspiration to thousands, but much more fallible than schoolchildren will be taught on the Wednesday after next.

Perhaps the basic history that most Americans receive must be simplistic, else there would not be time to learn it in any breadth. Thus, we can't go too far wrong if we recognize that Washington was great, George III was a tyrant, etc. And it may be, too, that my mind simplified concepts that were introduced with appropriate complexity in my grade school days.

But I can't help comparing the feeling I had in thinking about Washington's falterings to the discussion I had a few weeks ago about sports officials' fallibility: Are we better off believing an overly romanticized vision of people, so that we have "heroes" we idoloze, respect, or admire? Does the country benefit more from believing Washington was perfect than it would from analyzing his behavior in the Battle of Brooklyn? Should this inform the way in which we discuss judges? Specifically, how much should we discuss the non-legal influences on Constitutional Law? Does any of this affect the instant replay debate in sports?

In the end, I tend to like to hear the ugly truth, and I care little if some are taken from their high horses. But I'd welcome comments from those who disagree, and applaud Lisa Simpson's refusal to tarnish the image of Jebediah Springfield.

The title of this post and the first sentence have been updated to reflect the proper title of the work.

Posted by Mike_Dimino at 11:48 PM | Comments (2) | TrackBack

The Crime That Shouldn't Bother "Us"

Milwaukee made the NYT today, but not in a good way. While the nation's largest cities are seeing a drop in crime, other mid-sized cities are experiencing an increase in homicides. Milwaukee is one such city; 2005 saw 122 homicides compared with 88 in 2004. The increase in homicides is not due to gang-related violence or drug-related violence, however; the increase is almost all due to homicides that occurred during arguments over much smaller things, such as dirty looks or acts of "disrespect." These homicides are limited to certain neighborhoods and usually involve individuals with criminal records.

The article doesn't have a lot of answers as to reasons why this increase is happening. Milwaukee is a very segregated city, with a very high teenage pregnancy rate, a low high school graduation rate for African-American males, and a large racial education gap. With manufacturing leaving Milwaukee, the article suggests that lack of work opportunities in some neighborhoods have eliminated hope and possibly added to this "rage."

What bothered me about the article was the whitewashing of the problem by city officials. (Yes, I guess all puns intended.) For example, the police chief in Charlotte, NC is quoted as saying: "It's hard for people to look at it in depth and understand that they're not likely to be a victim if they get along with their family members and neighbors and don't live a high-risk lifestyle." I'm not sure what the "high-risk lifestyle" is here. Being poor? Living in a high-risk neighborhood? LIving next door to people with crimnial records? Not everyone gets to move into more expensive, crime-free neighborhoods just by wishing. I'm sure this quote is taken out of context, but it smacks of "they're just killing each other, so why should we care?"

Posted by Christine_Hurt at 09:15 PM | Comments (5) | TrackBack

The Enron Trial Stinks

I really can't believe I beat Christine Hurt to this nugget.

According to the indispensable Enron Trial Blog, Friday's proceedings were interrupted by a five minute break called by Judge Lake. Although the audience were told there were scheduling problems, in fact:

[T}hat five minutes was so Skilling's lawyer Daniel Petrocelli could scrub off his cologne. Apparently a juror in the front row found it overwhelming during his cross-examination of witness Mark Koenig this morning. She said she was gagging from the scent. She felt strongly enough to ask the court for an attorney fragrance correction.

The cologne allegedly was Chocolat. And Matt Bodie thought this would be an uninteresting trial!

Posted by hoffman at 03:03 PM | Comments (1) | TrackBack

Netflix and "Throttling"

Netflix allows customers to rent movies online -- as many as they want. According to the company's website:

With Netflix you can rent as many DVDs as you want from the comfort of your home and have them delivered to your door in about 1 business day! There are no late fees and no due dates, and shipping is free both ways. Plans start at $9.99 plus any applicable tax. With our most popular plan, 3 at-a-time (Unlimited), you can rent as many DVDs as you want for just $17.99 a month plus any applicable tax. You keep a revolving library of up to 3 DVDs at a time and can exchange them for new available DVDs as often as you like.

Sounds like a great deal, right? Well, if you use it really well to your advantage, Netflix will penalize you. According to the AP:

Manuel Villanueva realizes he has been getting a pretty good deal since he signed up for Netflix Inc.'s online DVD rental service 2 1/2 years ago, but he still feels shortchanged. That's because the $17.99 monthly fee that he pays to rent up to three DVDs at a time would amount to an even bigger bargain if the company didn't penalize him for returning his movies so quickly.

Netflix typically sends about 13 movies per month to Villanueva's home in Warren, Mich. — down from the 18 to 22 DVDs he once received before the company's automated system identified him as a heavy renter and began delaying his shipments to protect its profits.

The same Netflix formula also shoves Villanueva to the back of the line for the most-wanted DVDs, so the service can send those popular flicks to new subscribers and infrequent renters.

The little-known practice, called "throttling" by critics, means Netflix customers who pay the same price for the same service are often treated differently, depending on their rental patterns.

"I wouldn't have a problem with it if they didn't advertise 'unlimited rentals,'" Villanueva said. "The fact is that they go out of their way to make sure you don't go over whatever secret limit they have set up for your account."

Originally, Netflix kept its differential treatment of customers a secret, but after a class-action lawsuit, Netflix now warns about this in the fine print:

"In determining priority for shipping and inventory allocation, we give priority to those members who receive the fewest DVDs through our service," Netflix's revised policy now reads. The statement specifically warns that heavy renters are more likely to encounter shipping delays and less likely to immediately be sent their top choices.

Is Netflix still adequately disclosing what it is doing? The "How It Works" page, where you read up about what a great deal Netflix is, makes it sound like the sky's the limit. If you click on the FAQ on the side of that page called How fast will I get my DVDs? you will not hear even a whisper of any differential priority system. Only if you bother to read the laborious "Terms of Use" page will you discover that the sky isn't made out of cotton candy. And unlike the "How It Works" page, which is readily accessible, the link to the "Terms of Use" page is found in the fine print at the bottom of the website.

That's the problem with companies offering great "deals" like Netflix -- they depend upon many people not really getting the maximum value of the deal. On the other hand, Netflix might not be profitable if too many people rented too many videos.

But why not just be honest and call a spade a spade? Netflix could just come clean and say on its "How It Works" page: "The more videos you order in a month, the harder we'll make it for you to order more." Perhaps it could even be more blunt: "Order as many videos as you want, but if you order a lot, we'll treat you like crap." But if it said that, the marketing department would be up in arms. After all, to hook in the customers, it's better to promise that the "sky's the limit." Most customers won't reach for the sky, but they'll like feeling that they could if they wanted to. For those that try, treat them like crap, try to get rid of them . . . they're not profitable.

Posted by Daniel Solove at 12:27 AM | Comments (7) | TrackBack