Archive for December, 2006
Happy New Year (ala Roth)
posted by Frank Pasquale
I was recently listening to an interview with Philip Roth, and he recited a provocative passage he wrote in 1999 (apropos of millennium celebrations):
We watched the New Year coming in around the world, the mass hysteria of no significance that was the millennial New Year’s Eve celebration. . . . TV doing what it does best: the triumph of trivialization over tragedy. The Triumph of the Surface, with Barbara Walters. . . . a global outbreak of sentimentality such as even Americans hadn’t witnessed before. . . . The slightest lucidity about the misery made ordinary by our era sedated by the grandiose stimulation of the grandest illusion. Watching this hyped-up production of staged pandemonium, I have a sense of the monied world eagerly entering the prosperous dark ages. A night of human happiness to usher in barbarism.com.
From Roth, The Dying Animal, 145. As Roth said in the interview, the only time he does “redemption” is at the grocery store.
Anyway, the discussion of civility below reminded me of one of the essential qualities of our profession–the ability to look, together, at a desperate situation, and even in the midst of strong disagreement about what to do about it, treat each other with respect. Best wishes for a happy 2007, and I hope to see many of you at AALS.
Art Credit: George Grosz, Self-Portrait: Warning. This choice was inspired by the exhibit “Glitter and Doom” currently showing at the Metropolitan Museum of Art in NYC.
December 31, 2006 at 8:18 pm
Posted in: Culture
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(Moderately belated) Welcome to the Blogosphere: Dorf on Law
posted by Kaimipono D. Wenger
Michael Dorf (Michael I. Sovern Professor of Law at Columbia University School of Law) has been a participant in online discussion of legal issues for some time now, with his long-running column at Findlaw. As of about a month ago, Professor Dorf has also been a law blogger, opening shop at the new blog Dorf on Law. (For one recent interesting post, see Gerald Ford’s Greatest Legacy: John Paul Stevens.) Professor Dorf seems to have enlisted a number of co-bloggers as well, including Findlaw colleague Sherry Colb and Prawfsblawger Paul Horwitz.
Welcome to the blogosphere, Professor Dorf (and friends)!
December 30, 2006 at 10:38 pm
Posted in: Blogging
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And So It Goes: Possible Reasons to Care About Saddam Hussein’s Execution
posted by Deven Desai
Dan’s post asks whether we should care. This morning I was reading arguments regarding whether the United States could or should hand Saddam Hussein over to the Iraqi government because of international law concerns. The New York Times reports that news agencies have been debating whether to show the event. Now CNN reports he is dead. As I watch CNN and write this brief post Anderson Cooper notes that the execution was videotaped and photographed and that CNN will review this media possibly to show it but with some warning regarding the contents before it runs the footage.
Perhaps the reason to care is precisely the sense that Dan offers: even when we might not care about the specific person and “the intentional killing of another human being [does] not generate deep discomfort” — maybe especially at that point — we should care and look to the questions of justice that we otherwise would consider. Isn’t this in part what Arendt is addressing in Eichmann in Jerusalem: The Banality of Evil?
In other words, maybe we should slow down and see how we treat even the most extreme criminals rather than rapidly move from debates about international law to whether we should show or not show the execution not to mention indulging in the voyeurisitc reports of each moment before, during, and after the execution.
Then again to borrow a phrase from Vonnegut, and so it goes.
PS For those wishing to read the 298 opinion it is available at the Case Western Law Web site.
December 30, 2006 at 12:01 am
Posted in: Capital Punishment
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Sadaam Executed. Should We Care?
posted by Dan Filler
I think a lot about capital punishment, but I still haven’t figured out what to think about the (apparently completed) execution of Sadaam Hussein. Although I am deeply troubled by the use of capital punishment in the United States, and have questions whether any system can consistently offer the assurances of fairness and accuracy commensurate with the sanction, I do not oppose the death penalty categorically. If the death penalty is appropriate, it seems to me that one must feel confident that the target is actually guilty, that he received a fair trial, and that he is culpable at the highest moral and practical level for the most serious crimes. When it comes to Sadaam, there is little doubt (as far as I can tell) that he is guilty of facilitiating mass killings. I don’t know whether he received a fair trial and I don’t know enough about him personally to know whether he is morally culpable on an individual level – although he doesn’t appear to have much claim to most of the mitigators surfacing in a typical U.S. capital sentencing. At the end of the day, I don’t have much sympathy for the guy.
So should I care if he is executed? Perhaps I should not only care, but be pleased. On some level, this sentence – which unlike most death sentences in the U.S., will actually be noticed both by the people we hope to reassure and those we hope to deter – communicates a fair amount about society’s view of his conduct. In that sense, this outcome is probably better than having troops kill him while he was huddled in a bunker. And it is surely better for the U.S. that he be executed after an Iraqi trial, and by Iraqis, rather than through a U.S. military tribunal.
Maybe I shouldn’t care, even if the penalty is wrong because these sanctions aren’t ours to distribute. But that can’t be quite right, since the current Iraqi regime is (at least partially) an American creation. And if the death penalty is unjustifiable murder, if I truly believed that to be true in all cases, I would have to be upset and angry, and probably feel compelled to take at least some small action in opposition.
I can’t quite get to the bottom of my own emotions. The process seems like slow motion, a bit, though it is far faster than any American death penalty. (Isn’t that oxymoronic? The American process is so slow that it doesn’t even look like motion. In the end, the execution feels little different from a premeditated killing precisely because it is not part of a continuing, visible, inevitable process that leads directly to execution. Here, however, the process is swift enough that we can watch it unfold slowly before our eyes.) I fear that it will have negative political repercussions. I fear that it will reopen wounds that should stay closed, or close wounds that demand further inspection and investigation. I fear that the comfortable use of death in this case will reassure some people that the death penalty is appropriate for more mundane crimes.
But I don’t feel much pity. And I don’t feel a sense of injustice. So in some awful sense, I don’t care much at all. And there’s the rub. I deeply dislike the idea that the intentional killing of another human being would not generate deep discomfort in me. I seem to have found out why I don’t oppose the death penalty categorically. But I’m not sure I’m proud of the insight.
December 30, 2006 at 12:00 am
Posted in: Capital Punishment, Criminal Law, International & Comparative Law
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The Future of the Photo Search
posted by Daniel Solove
From the AP:
A Swedish startup is combining software and humans to help make photos and other images more easily searchable online, raising privacy concerns as the technology eases the tracking of people across Web sites. . . .
Polar Rose AB is bringing facial-recognition technology to the mix. Its software scans everyday images for about 90 different attributes. If the software finds a match with images in a database, it concludes the two photos are of the same person.
The company, among many startups seeking to improve image search, believes its technology is noteworthy because it creates 3-D renditions of faces in images, allowing the computer to account for slight variations in angles and lighting.
Nikolaj Nyholm, the company’s chief executive, said testing has shown up to 95 percent reliability with sets of 10,000 photos. But he said that as the collection grows — there are millions, perhaps billions, of photographs on the Internet — reliability diminishes because, well, many people simply look alike.
That’s where humans come in. In early 2007, the company will distribute free plug-ins for Microsoft’s Internet Explorer and Mozilla’s Firefox browsers. People who post or view photos could add information such as names; there might be the occasional error, but enough people filling in the correct answer would make that rise to the top.
The idea is to label every face, even ones in the background, whether posted on a Web journal, a photo-sharing site like Yahoo Inc. (Nasdaq:YHOO – news)’s Flickr or a social-networking hangout like News Corp.’s MySpace. The service won’t index images on personal computers or password-protected sites.
The company is called Polar Rose, and it claims that it “relies on a combination of our unique face recognition algorithms and the collective intelligence of our users.” If this works as intended, this new photo search could pose a privacy threat, as many pictures of people online are currently without captions and thus won’t pull up in a search under a person’s name. On the other hand, since it works via a wiki, people could add in bogus information to make the system less reliable. Anyway, will this new photo search really work well? How much of an impact will it have on privacy?
December 29, 2006 at 6:17 pm
Posted in: Privacy
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The BLE of Sports Betting
posted by Dave Hoffman
I know that we’re engaged in talking about serious subjects, but this Bill Simmon’s column really is a great read. Bill makes the following claim, which I pass along without evaluating whether it is, well, true. This year, against the Las Vegas NFL line, underdogs have gone 137-97-6 for the season. Bill continues:
“Out of those 136 underdogs that covered, an astonishing 100 won their games outright (including 11 of 13 last week). I can’t even rationally discuss this anymore.”
Honestly, I don’t get it either. Are the folks in Vegas taking their eyes off of the ball, perhaps due to personal problems? Or has the NFL’s crazy economic scheme, resulting in parity of a sort, made betting on games really a matter of chance? (Simmons blames an unexpected triumph of common sense, but, really, would common sense have predicted the Eagles’ win over the Cowboys last week?)
And now, back to real legal topics. And grading.
December 29, 2006 at 1:53 pm
Posted in: Behavioral Law and Economics
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Academic Civility
posted by Daniel Solove
After reading the posts by Dan Markel and Dave Hoffman on academic civility, I can’t help but join into the fray. Markel and Hoffman offer radically different perspectives. Markel suggests that professors should criticize other professors’ work mildly. He says that he will “drop adverbs and instead use locutions such as the claims advanced in the article ‘seem mistaken or inaccurate’.” He argues for a bunch of other steps academics should take lest they slightly mischaracterize another’s argument, such as showing one’s criticism to the academic being criticized first for comments.
Hoffman takes the opposite approach: “[T]he unique conceit of legal scholarship (among the humanities) is that it directly affects the lives of millions of people. Since I intend for my work to better those millions of lives, and I think my arguments are correct, I have to assume that people I disagree with on fundamental issues either are wrong about the results of their policies in the real world, don’t care about their fellow citizens (more precisely, care about ideas as intellectual games), or are simply nasty folks.”
I believe that both Markel and Hoffman are wrong. Put in Markelian terms, it might appear to be the case that there’s a possibility that Markel is not entirely correct, though I can’t be certain. In Hoffman’s terms, Hoffman’s perspective stems from an evil fundamentalism [insert reference to terrorists here]. In similistic terms, Markel advances a love your opponent approach and Hoffman advances a hate your opponent approach.
First of all, I believe that legal academics should not be so convinced of the truth of their arguments that they are unwilling to welcome opposing viewpoints. I, for one, think and hope I’m right, but I’m far from certain. I strive to be correct, but I believe it is also important to entertain doubts, to listen and address counterarguments, to always be aware of my fallibility. It is a kind of fundamentalism that leads to the belief that one’s views are definitely correct and that all who disagree must be wrong and evil. I believe that this kind of fundamentalism is incompatible with my vision of what being an academic is all about.
December 28, 2006 at 9:05 pm
Posted in: Law School (Scholarship)
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Counter-cyclical journals, Redux
posted by Kaimipono D. Wenger
It’s December . . . do you know where your counter-cyclical journals are?
I realize that the conventional wisdom (as articulated, for example, by some yahoo a few years ago) is that “submitting an article in December is the functional equivalent of dropping it off a bridge.” But for every rule there is an exception. And so we asked this question six months ago, and we ask it again, now.
If you’re a journal editor and your journal is actively pursuing articles right now, please weigh in in the comments. If you’re an author who just (in the past month or so) received an offer from a journal, feel free to sound off as well.
December 28, 2006 at 8:41 pm
Posted in: Law School (Law Reviews)
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Nifong to Face Bar Discipline
posted by Dave Hoffman
N.C. D.A. Mike Nifong will face a bar charges, according to the AP (via Drudge). The weird part: the Bar opened its investigation last March!
Among the four rules of professional conduct that Nifong was accused of violating was a prohibition against making comments “that have a substantial likelihood of heightening public condemnation of the accused.”In a statement, the bar said it opened a case against Nifong on March 30, a little more than two weeks after a 28-year-old woman hired to perform as a stripper at a lacrosse team party said she was gang-raped.
You can find the complaint here. And helpful comments at the Legal Ethics Forum, of course. I agree with John Steele that Nifong will raise 1A objections, but it seems that he is poorly positioned to make them stick.
December 28, 2006 at 8:39 pm
Posted in: Legal Ethics
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Markel on Civility
posted by Dave Hoffman
Over at Prawfs, Dan Markel has a interesting post up on the ethics (and civility) of scholarship. Here’s a taste:
Anytime I’m tempted to write out of rage that someone’s argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as the claims advanced in the article “seem mistaken or inaccurate” for the following reasons… This helps focus on, what Michael Walzer wisely described, the task of “getting the arguments right.” It’s not about making anyone look foolish or wicked.
To which Ethan Leib responds, in the comments:
Oh, I don’t know. This all seems a bit prissy. What great theorist hasn’t taken some liberties with broadstroking a school of thought? Doesn’t this ethic of careful citation and naming names (isn’t that a lot like dropping names?) just give the bluebook monkeys more to bother us about?
This emerging debate reminds me a bit of Brian Leiter’s incivility discussion three years back. I think Dan’s ethical principles are grappling with one of the central problems of being a scholar, which cycles to and from prominence in academic circles.
Surely, Dan’s goals are good ones. But, I think, they tradeoff against another goal we all want, which is to get our ideas across clearly. It is hard to write well. It gets harder when your writing is stripped of tone, weighted down by picayune citation, and qualified up the wazoo by a five-, seven-, or nine-level journal editing process. I’m sure Dan doesn’t mean that we should sacrifice clarity for civility, but I think the tradeoff is usually present.
Dan’s other claim is, essentially, that we should never think that scholars we disagree with are evil-minded. This, too, is a hard problem. Scholarship is a grind – often rewarding, always challenging, usually lonely – but always hard work. For me, imagining myself in a battle against wrongdoers (or, better, wrong-thinkers) is the best way to motivate to get out of bed in the morning and write. Cf. Why I Write (Prawfs ’05).
More significantly, the unique conceit of legal scholarship (among the humanities) is that it directly affects the lives of millions of people. Since I intend for my work to better those millions of lives, and I think my arguments are correct, I have to assume that people I disagree with on fundamental issues either are wrong about the results of their policies in the real world, don’t care about their fellow citizens (more precisely, care about ideas as intellectual games), or are simply nasty folks. [Update, I've reordered these possibilities to reflect my view of their likelihood, with a heavy weighting toward the first] In any event, civility and collegiality seem less important to me than being satisfied, in my mind, that I’ve gotten the arguments right and demonstrated to the reader how I arrived at them. Proper and generous citation will generally out foolishness. As Ethan points out, “It’s an adversary process out there.”
December 28, 2006 at 9:42 am
Posted in: Uncategorized
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Most Admired Law Professor
posted by Dave Hoffman
Gallup has a new poll up on the most admired world figures. (It’s President Bush for men, Hillary Clinton for women.) Notably, there are two former law professors on the lists: Bill Clinton (Fed Courts) and Barack Obama (Con Law, Voting Rights).
But the Gallup audience isn’t nearly as sophisticated, nor as interested in obscure jurists, as our readers are. So, let’s repeat the exercise here. I thought about a poll, but that would seem a tad impolitic (what if I excluded someone who cared – Pollhost only gives you 10 answers). In the Gallup tradition, I’ll leave comments open, and invite you to talk about a law professor that you admire. Self-nominations and nominations of members of this board are, well, sort of silly.
December 27, 2006 at 1:35 pm
Posted in: Law School
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President Ford Dies; Instant Obit Surfaces
posted by Dan Filler
Gerald Ford, a rare “regular guy” President, has just died. I remember him as being bland and unremarkable, though I did appreciate his WIN (whip inflation now) buttons. Wasn’t that a simpler age?
The thing about ex-Presidents is that every paper of record is ready with a full-tilt obituary at the moment a death is announced. Thus, I discovered the news at the Washington Post a second ago…and this annoucement came with a five webpage story behind it. This is to be expected, I suppose. Still, I would have preferred a few hours of “breaking news”, complete with only a short story. Somehow the delivery of the insta-obit took the focus off the news event itself. And it almost seems more respectful not to deliver the canned bio so quickly. At least make it look like someone scurried around for a few hours.
December 27, 2006 at 12:21 am
Posted in: Current Events
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Refuting the Absurd
posted by Frank Pasquale
Appellate clerks often find their hardest assignments are not addressing complex legal issues, but dealing with a bizarre and intuitively ridiculous effort to stretch the law to cover some new situation. There’s just no relevant precedent! A conscientious judge may well want every argument in the losing party’s brief addressed–even the real dogs. Of course, things aren’t so bad as the TV show Boston Legal recently suggested (when one partner claimed anyone could get a case against God (for a lightning strike) past summary judgment). But really strange arguments can strain the imagination…and in the end, are probably good for both clerks and for the law, which can finally articulate the exact reasons why any experienced lawyer would laugh a given position out of court.
It strikes me that reviews of truly terrible and ill-conceived books can serve a similar function. Consider, for instance, this review of Charles Murray’s Human Accomplishment (Murray’s effort to “rank-order the great achievers in an objective manner”). The method of Murray’s book is as crude as the aim:
[T]he process whereby the great human achievers are located and rank-ordered essentially boils down to this: a series of reference books is located for each of the various divisions into which the variety of human achievement has been broken down (e.g., Western art, Japanese art, Chinese philosophy), and the number of pages of reference to various individuals is then tabulated. And that, as they say, is that.
One might question why such a project should even be addressed in a scholarly journal. But the reviewer (Robin Barrow) makes some very interesting points about ranking overall. As he notes,
The trappings of science do not make for science and . . . a methodology that is in itself “objective,” “scientific,” “quantitative,” or anything else smacking of hard and indisputable proof does not produce proven or demonstrated conclusions concerning anything other than what the methodology actually deals with. In this case, assuming the methodology is as unambiguous as Murray (incorrectly) suggests, it gives us demonstrated conclusions pertaining to the amount of space devoted to various people in reference works, and nothing relating to the quality of their work.
It is obviously possible to be a great but unrecognized artist. Does it make sense to claim that an artist who is not recognized because nobody has ever valued his work is nonetheless great? Of course it does.
In any event, as rankings-mania hits more and more fields, I highly recommend this brief “wake-up call” on its limits.
December 26, 2006 at 6:09 pm
Posted in: Law School (Rankings)
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Science vs. Free Will: Maybe Eating All That Holiday Food Wasn’t Your Choice
posted by Deven Desai
The Economist reports that some aspects of neuroscience indicate that certain notions of when we exercise free will may be on the ropes. The article notes the case of someone who was a pedophile only when a tumor was present. When the tumor was removed the behavior ceased, but when it grew again, the behavior returned. The article focuses on the idea that much of criminal law (“the criminal law—in the West, at least—is based on the idea that the criminal exercised a choice: no choice, no criminal.”) and theories of the market (“Markets also depend on the idea that personal choice is free choice.”) rest on the idea of free will. According to the article one implication of these discoveries is “The British government[’s move] to change the law in order to lock up people with personality disorders that are thought to make them likely to commit crimes, before any crime is committed.” And for the market notions about our choices regarding consuming “Fatty, sugary foods … addictive drugs such as nicotine, alcohol and cocaine [and] [p]ornography” may be suspect as well.
I think the article is correct when it offers
Science is not yet threatening free will’s existence: for the moment there seems little prospect of anybody being able to answer definitively the question of whether it really exists or not. But science will shrink the space in which free will can operate by slowly exposing the mechanism of decision making.
Nonetheless as science continues to chart better how we think and behave, the way the law addresses certain issues will necessarily be challenged. For example Rebecca Tushnet presented a paper examining decision-making and dilution doctrine at a recent works-in-progress conference. The paper raises some great points and questions about assumptions in the doctrine and what research supports or undercuts those views. (In deference to Rebecca I offer this quote from her regarding the paper “I’ll just ask that people recognize this as a draft, and if you want to cite or quote it, please just be willing to update the reference if and when it’s published.”)
I am sure others are pursuing analagous research so if readers have other examples of law and neuroscience, please share them. Then again if all of you simply want to kick back, relax, and run to left-over “Fatty, sugary foods,” I understand. You can’t help it. You have no choice. In fact I think I hear my something in my pantry calling and must go now.
December 26, 2006 at 6:05 pm
Posted in: Uncategorized
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Comparative Sociology
posted by Dave Hoffman
Some worry that American political culture is hopelessly depraved, bitter, and nasty. Those pessimists’ horizons are, I think, too narrow. Take, for example, New Zealand, where one member of parliament giving the finger to another in live session was merely the fourth worse public insult of the year, according to a recent poll.
I will say, that any country who puts this dolphin-hurts-woman story as the lead of a major paper is worth visiting.
(Sorry, for what it is worth, about the low posting ratio. I’ve been very busy. Hopefully, the tedium of grading will motivate me to post more this week.)
December 26, 2006 at 5:05 pm
Posted in: Weird
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Floyd Landis and A New Wrinkle on the Court of Public Opinion
posted by Deven Desai
Some of you may recall that Floyd Landis is fighting allegations by the U.S. Anti-Doping Agency and World Anti-Doping Agency that Landis used testosterone to win the Tour de France. Today’s L.A. Times has an article about the fight and of possible note to this readership the way in which Landis is challenging the process. Landis has posted 370 pages of documents including the lab reports related to the dispute. According the Times, “The result is a vigorous debate on Internet message forums and bulletin boards about the science underlying the charge and whether Landis … has been unjustly accused.” Even more interesting “Landis’ representatives say they have gleaned a wealth of clues about how to attack the evidence when the case goes before an arbitration panel.”
The approach is being called the wiki defense.
Landis’s move seems to accomplish at least two things: 1) He is forcing an otherwise closed process into the open and 2) He is tapping into a large pool of knowledge including experts in the field to challenge the claims.
If this approach works, perhaps the court of public opinion will enter a new phase where defendants use technology to reach a larger audience to plead their case (and I suppose possibly taint juror pools though this instance is an arbitration) and where perhaps better science and analysis will come to bear on cases. My guess is that those who see this as a total revolution in how cases will operate will overstate its impact. Nonetheless, I wonder what would have happened in the O.J. or Kobe cases if there were a wiki where evidence was available to the public. If the material online were already in the public record and then posted online, it may simply be a further aspect of television broadcasts of trials. Yet, if one were a poor defendant or under-resourced public defender and could use the Web to access scientific and/or legal defense knowledge similar to what O.J. or Kobe could afford that could be quite an interesting development for the defense bar.
December 23, 2006 at 3:05 pm
Posted in: Uncategorized
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I KNEW that global warming was a hoax!!
posted by Heidi Kitrosser
From The Onion:
Al Gore Caught Warming Globe to Increase Box Office Profits
December 23, 2006 at 9:40 am
Posted in: Humor
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Abusive Secrecy
posted by Heidi Kitrosser
Here are some statements from an op-ed published in February, 1989 in the Washington Post:
“It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”
The author also referred to the famed Pentagon Papers case of the early 1970s, in which the Nixon administration had sought to enjoin press publication of a Defense Department-commissioned history of the Vietnam War. The op-ed author wrote: “I have never seen any trace of a threat to the national security from the [Papers'] publication. Indeed, I have never seen it even suggested that there was such an actual threat.”
Who wrote this op-ed piece? None other than Erwin N. Griswold, former Solicitor General of the U.S. during the Nixon Administration, who argued the Pentagon Papers case before the Supreme Court on behalf of the White House.
Griswold’s words — not to mention his very example as a government servant who fought tooth and nail for secrecy only to acknowledge later that the fight was unjustified — resonate all too well today. Just this past week, we’ve seen the release of a classified document that was the subject of a major subpoena brouhaha until the government finally released the document and its innocuous nature became clear. Also released after twenty-five years was was the previously classified FBI file on John Lennon, revealing such shockers as the fact that “Lennon has encouraged the belief that he holds revolutionary views, not only by means of his formal interviews with Marxists, but by the content of some of his songs and other publications.”
Today, the NY Times op-ed page features a stunning piece by two former CIA employees, explaining that the CIA refuses to let them release an unredacted op-ed about Iran policy. The CIA concluded on its own that the piece contains no classified material, but explained to the former employees (who are subject to a pre-publication review agreement as ex-employees) that the agency “had to bow to the White House.” Because all of the redacted information apparently is in the public domain, the ex-employees have released the redacted op-ed along with citations to public sources that fill in the redaction gaps. The authors acknowledge that readers will have to review each of the citations “to make much sense of [the] Op-Ed article.” Needless to say, such a cumbersome read is far less likely to be effective, let alone to get read, than would a single, unredacted piece.
I don’t know of anyone who seriously suggests that the government must never keep secrets. Secret-keeping sometimes is a necessary evil to protect national security and other government functions. But abusive secrecy in the form of massive over-classification, unwarranted pre-publication restraints, etc. should not be tolerated in a system that is founded in large part on the free flow of ideas, an informed populace, and ultimately self-government. Nor MUST it be this way. Both Congress and the courts can play a much more active watch-keeper role over executive branch secrecy than they generally do. As I have written about here and here (and in a forthcoming piece on classification leaks and the First Amendment which I haven’t yet released) such a role is entirely consistent with, even demanded by, the checks and balances that are supposed to keep our system from devolving into tyranny.
December 22, 2006 at 4:39 pm
Posted in: Current Events
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Thoughts on Marketing
posted by Frank Pasquale
Inspired by Ellen Goodman’s fascinating article on “Stealth Marketing,” here are two random thoughts on ads and such during this frenetic shopping season.
First, from the Economist, on the relevance of postmodern theory to modern business:
Modern retailers are only just getting to grips with two of the consequences of the breakdown of authority and hierarchy that [pomo theorists] hoped for half a century ago: the “fragmentation” of narratives and the individual’s ability to be “the artist of his own life”. Modern business uses a different language to discuss the same ideas. In “The Long Tail”, an analysis of the impact of the internet on the music industry, with wider ramifications, Chris Anderson describes the “shattering of the mainstream into a zillion different cultural shards”. The post-modern “fragment” becomes a “niche” and the mass market is “turning into a mass of niches”.
This is a bit abstract, but I highly recommend reading Clotaire Rapaille’s The Culture Code to see how it works in action. Rapaille uses extremely simple narratives to get at the subconscious wellsprings of consumer behavior.
December 22, 2006 at 10:12 am
Posted in: Advertising
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Philanthropic Arms Races vs. Charity
posted by Frank Pasquale
There have been a number of interesting pieces on charitable giving this holiday season. Peter Singer estimates how much individuals ought to feel morally obliged to give. Arthur Brooks argues that conservatives and the working poor are more inclined to charitable giving than society at large.
All of these news stories, as well as the supernova of Buffett-benevolence, tend to focus attention on charitable giving to the poor. However, some estimate that only 10% of all charitable giving in the U.S. helps the underprivileged. This has led to Congressional hearings on the topic, with some Republicans complaining about the nonprofit status of hospitals with low rates of charity care, and some Dems questioning donations to elite universities:
Representative Thomas and others are particularly vexed by nonprofit hospitals, often noting that data from the American Hospital Association calculated that their average spending on uncompensated care was 4.4
percent of their costs in 2002, compared with 4.5 percent for their commercial cousins. Representative Charles Rangel of New York, the senior Democrat on the Ways and Means Committee, has asked whether a better target may be universities, which sit on tens of billions of dollars in assets while tuition increases are outpacing inflation.
A big question here is: what’s behind these dynamics? As I suggest below the jump, a lot has to do with a pernicious interplay between increasing inequality and pervasive use of ranking systems as measures of quality for credence goods. In fields like education and health, where the quality of one’s experience is very difficult to evaluate objectively, ranking systems are forcing leaders into an arms race to acquire ever more resources.
December 21, 2006 at 9:39 pm
Posted in: Behavioral Law and Economics, Economic Analysis of Law, Politics
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