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Happy New Year (ala Roth)

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.

Posted by Frank_Pasquale at 08:18 PM | Comments (0) | TrackBack

(Moderately belated) Welcome to the Blogosphere: Dorf on Law

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)!

Posted by Kaimipono at 10:38 PM | Comments (1) | TrackBack

And So It Goes: Possible Reasons to Care About Saddam Hussein's Execution

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.

Posted by Deven_Desai at 12:01 AM | Comments (3) | TrackBack

Sadaam Executed. Should We Care?

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.

Posted by Dan_Filler at 12:00 AM | Comments (4) | TrackBack

The Future of the Photo Search

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?

Posted by Daniel Solove at 06:17 PM | Comments (1) | TrackBack

The BLE of Sports Betting

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.

Posted by hoffman at 01:53 PM | Comments (7) | TrackBack

Academic Civility

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.

Second, while I hope that my ideas affect society, I do not see myself as a crusader. I present arguments, ideas, and evidence for people to use. I thus supply grist for certain legal or policy debates, but I don't see myself as leading the charge for change. Had I wanted to affect society in this way, I would have become an advocate or a politician. While I care deeply about how my ideas play out in practice, I think it is important for the academic to retain some degree of detachment.

On the other hand, I don't agree with Dan Markel that one must be very deferential to those making opposing arguments. Academic discourse is a vigorous debate. Ideally, arguments can be made in a civil way (name calling is counterproductive and adds nothing). But this doesn't mean that one should pull one's punches. If I think another person is wrong, I'll point it out as strongly and as powerfully as I possibly can . . . and sometimes even with a little bit of spice. Sometimes I'll solicit advance comments from the scholar I'm critiquing, but I don't view this as a necessity. Being criticized is part of this business, and you need to have a thick skin. I'd much rather be criticized than ignored, so my attitude is "bring it on."

In the end, I'm engaging in a debate and presenting arguments. It is my arguments that will either win the day or will not, and my role is to make them as persuasively, as thoughtfully, as logically, and as completely as possible. If another scholar disagrees, so be it. My arguments will either hold up or they won't. Hating or loving my antagonists will do absolutely nothing to change that.

Posted by Daniel Solove at 09:05 PM | Comments (6) | TrackBack

Counter-cyclical journals, Redux

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.

Posted by Kaimipono at 08:41 PM | Comments (3) | TrackBack

Nifong to Face Bar Discipline

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.

Posted by hoffman at 08:39 PM | Comments (0) | TrackBack

Markel on Civility

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.”

Posted by hoffman at 09:42 AM | Comments (9) | TrackBack

Most Admired Law Professor

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.

Posted by hoffman at 01:35 PM | Comments (10) | TrackBack

President Ford Dies; Instant Obit Surfaces

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.

Posted by Dan_Filler at 12:21 AM | Comments (7) | TrackBack

Refuting the Absurd

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.

Posted by Frank_Pasquale at 06:09 PM | Comments (2) | TrackBack

Science vs. Free Will: Maybe Eating All That Holiday Food Wasn’t Your Choice

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.

Posted by Deven_Desai at 06:05 PM | Comments (7) | TrackBack

Comparative Sociology

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.)

Posted by hoffman at 05:05 PM | Comments (1) | TrackBack

Floyd Landis and A New Wrinkle on the Court of Public Opinion

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.

Posted by Deven_Desai at 03:05 PM | Comments (1) | TrackBack

I KNEW that global warming was a hoax!!

From The Onion:
Al Gore Caught Warming Globe to Increase Box Office Profits

Posted by Heidi_Kitrosser at 09:40 AM | Comments (0) | TrackBack

Abusive Secrecy

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.

Posted by Heidi_Kitrosser at 04:39 PM | Comments (3) | TrackBack

Thoughts on Marketing

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.

Here's a summary of his method from Malcolm Gladwell:

Over the past decade, a number of major automakers in America have relied on the services of a French-born cultural anthropologist, G. Clotaire Rapaille, whose speciality is getting beyond the rational—what he calls "cortex"—impressions of consumers and tapping into their deeper, "reptilian" responses. And what Rapaille concluded from countless, intensive sessions with car buyers was that when S.U.V. buyers thought about safety they were thinking about something that reached into their deepest unconscious. "The No. 1 feeling is that everything surrounding you should be round and soft, and should give," Rapaille told me. . . . "Then there's this notion that you need to be up high. That's a contradiction, because the people who buy these S.U.V.s know at the cortex level that if you are high there is more chance of a rollover. But at the reptilian level they think that if I am bigger and taller I'm safer. You feel secure because you are higher and dominate and look down."

Cupholders also play a key role: "And what was the key element of safety when you were a child? It was that your mother fed you, and there was warm liquid. That's why cupholders are absolutely crucial for safety. If there is a car that has no cupholder, it is not safe."

I suppose this all sounds a bit ridiculous--but it certainly strengthens Goodman's view that advertising may need to be more explicitly thematized. I also find these words of wisdom from Dilbert creator Scott Adams quite interesting. In response to a query on why "the marketing department is always the enemy," he responds:

Economics people can talk to engineering people because you're always looking for the cheapest, easiest, simplest, most elegant solution. You're looking at complexity and trying to simplify. Marketing people are trying to hide reality. They're trying to take, for example, long distance telephone service, which is exactly the same no matter who you buy it from, and convince people that one is better. All of your instincts as an engineer are to be logical and simple and reliable -- and in marketing, everything is to take what is clear and make it unclear. So when you put engineers and marketing people in the same room, it just doesn't work.

Hmmm....those SUV cupholders look pretty well-engineered to me!

Posted by Frank_Pasquale at 10:12 AM | Comments (1) | TrackBack

Philanthropic Arms Races vs. Charity

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.

Michael Kimel offers the following critique of multibillion dollar endowment campaigns:

In fiscal year 2006 alone, the top 25 university endowments grew an average of about 16%. . . . . [But] financing professor poaching feeds a vicious cycle of ever-increasing faculty salaries. As business journalist Joe Nocera noted recently, competition usually causes prices to go down, but competition among universities for faculty and students actually causes prices and costs to rise because "the ever-upward spiral of bigger salaries and better facilities and all the rest of it makes the running of the university that much more expensive." In the words of John V. Lombardi, chancellor of the University of Massachusetts, "It's an arms race."

This is a valid (and ever more salient) point, but needs to be situated in a larger story about growing inequality. The elite universities aren't just poaching talent from one another; they are also competing with other sectors of the economy. As Jacob Hacker shows in The Great Risk Shift, inequality is not just rising in general, but also among highly skilled workers. Taxpayers may not "have an interest in subsidizing 'endowment races' that suck scarce philanthropic resources from underfunded charities," but they also don't have an interest in the chasms of inequality that make such arms races necessary. Moreover, any agreement to limit salaries might provoke antitrust scrutiny.

Hospitals are facing similarly Darwinian competitive dynamics, and similar pressures toward wasteful spending (well, at least they don't hoard!). Consider a great piece on "Hospital Wars" in Time. The reporter covers a growing battle between general and specialty hospitals--the latter are "leaner" entities, often having shed "ER's" and other traditional forms of community service in pursuit of higher profits for physician-owners and the most advanced medical technology. Accusing their new competitors of "cherrypicking," general hospitals are fighting back:

Such competition is fueling the arms race. "[New equipment] is one of the areas that we've beefed up since all the specialty stuff happened," says [the CEO of a general hospital]. . . . [Its competitor] has remodeled its operating rooms, opened a $54 million, four-story critical-care building and invested in its own gadgetry. "We compete on technology and have to stay state of the art," says Francie Ekengren, chief medical officer. And if they build it, we'll fill it. The Medicare Payment Advisory Commission found that health-care markets with specialty hospitals have roughly 6% more cardiac surgeries and 9% more bypasses than markets without them. It's not that doctors deliberately push unnecessary surgery, but when a choice of treatments exists, capacity and monetary incentives have been known to influence the choices physicians make.

So the Republican Congress's recent decision to encourage "competition" in hospital care by letting lapse a Medicare moratorium on specialty hospitals has ended up spawning that great bugbear of conservative health economists: induced demand, which occurs when the need to pay for expensive equipment or facilities causes doctors to promote their use, regardless of genuine need.

What can we learn from the education and hospital wars? First, that "competition" is not always a good thing, and that some "everyday arms races" can be pretty wasteful.

Second, my sense is that a greater targeting of the charitable tax deduction is necessary. Donations intended to alleviate poverty, or serve the underprivileged, should be favored. I presented a philosophical case for this at the normative political theory section of the APSA conference, and I hoped to write it up as an article, but I don't have enough time to really make this happen in 2007 doing it on my own. So this leads to a bleg: would anyone expert in tax like to co-author this with me? I'd be happy to send you what I already have--just write me at FIRSTNAME.LASTNAME@GMAIL.COM. (Sorry for the code--I'm getting way too much spam!)

Posted by Frank_Pasquale at 09:39 PM | Comments (1) | TrackBack

Possible Empirical Support for Corporate Social Responsibility: What Would Uncle Milty Say?

Milton Friedman is famous (or infamous depending on to whom you talk) for many things including the position he takes in The Social Responsibility of Business is to Increase its Profits. In that article he asserts that corporate social responsibility is

a "fundamentally subversive doctrine" in a free society, and [] that in such a society, "there is one and only one social responsibility of business–to use it resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud."

Yet along comes McKinsey & Co., not exactly a bastion of socialism, and asserts “The case for incorporating an awareness of social and political trends into corporate strategy has become overwhelming.” (the full article is available only to subscribers, sorry). McKinsey conducted a survey that found “Eighty-four percent of the executives from around the world who participated in a McKinsey survey agreed that their companies should pursue not only shareholder value but also broader contributions to the public good.” Could it be that these executives wish to offer, in Friedman ’s words, “hypocritical window-dressing” because “our institutions, and the attitudes of the public make it in their self-interest to cloak their actions in this way”? Or are the executives simply acting in congruence with Freidman’s observation that that it may be in a corporation’s interest “to generate goodwill as a by-product of expenditures that are entirely justified in its own self-interest.”

McKinsey’s analysis notes that corporations must be aware of changes “social and political trends” as they will impact the social contract in place. In other words, ideas and views that previously were on the fringe, or frontier in McKinsey-speak, such as who is responsible for obesity or smoking problems may move to the core of the social contract and impact the corporation through regulation and lawsuits. The article then lauds CEOs who are at the forefront of addressing how the corporation handles global warming or health care. Yet, Friedman’s article seems to warn against this approach when he describes calls by corporate executives for government to affect a given policy as ill-conceived because “the external forces that curb the market will not be the social consciences, however highly developed, of the pontificating executives; it will be the iron fist of Government bureaucrats.”

Although McKinsey seems to argue that corporations follow shifts in “social and political trends” so that they can anticipate and affect the debate in their favor to curtail government regulation or influence regulation if it does come, Friedman still seems to deny this approach as good. He asserts “[T]he doctrine of ‘social responsibility’ taken seriously would extend the scope of the political mechanism to every human activity. It does not differ in philosophy from the most explicitly collectivist doctrine. It differs only by professing to believe that collectivist ends can be attained without collectivist means.”

So are McKinsey and its surveyed executives better informed or just misguided?

PS Note that Sony’s rootkit woes which arguably stem from a failure to anticipate the impact of consumers’ privacy views (a topic that the McKinsey study explicitly warned about) continue.

Posted by Deven_Desai at 02:48 PM | Comments (12) | TrackBack

Eye-opening op-ed about Holocaust denial

I'm half shocked, and half unsurprised, as the writer explains:

Western leaders today who say they are shocked by Iranian President Mahmoud Ahmadinejad's conference this week denying the Holocaust need to wake up to that reality. For the majority of Muslims in the world, the Holocaust is not a major historical event that they deny. We simply do not know it ever happened because we were never informed of it. . . .

For generations, the leaders of these so-called Muslim countries have been spoon-feeding their populations a constant diet of propaganda similar to the one that generations of Germans (and other Europeans) were fed — that Jews are vermin . . . In Europe, the logical conclusion was the Holocaust.

It's a sobering read.

UPDATE: Also of note are the writer's population numbers. As she notes, there are currently about 20 million Jews worldwide, and about 1.2 billion Muslims. That's a startling difference -- and one that, as a non-Jew and non-Muslim, I had never really thought about. For detailed breakdown, there are any number of population websites, such as here (worldwide Jewish population) and here (worldwide Muslim population by country).

I hadn't realized it until I looked at the numbers, but there are 18 different countries with Muslim populations over 18 million (Afghanistan, Algeria, Bangledesh, China, Egypt, Ethiopia, India, Indonesia, Iran, Iraq, Morocco, Nigeria, Pakistan, Saudi Arabia, Sudan, Tanzania, Turkey, and Uzbekistan). Each one of those countries has a Muslim population well in excess of the worldwide Jewish population.

I wonder how many Americans realize that numerical difference. I see Israel-Middle East conflict on the news, regularly, and it gives the vague impression that there are a lot of Jews and a lot of Muslims -- at least, I had always gotten that impression. If asked, I'm sure I would have answered that there were more Muslims then Jews -- but not that the difference was a 100-to-1 ratio. I'm surprised to have formed such a wrong impression, and I suspect I'm not the only one who has that idea. I wonder how many Americans would answer correctly questions like, "Which is greater, The worldwide Jewish population, or the Muslim population of Tanzania? Of Morocco? Or Uzbekistan?"

Posted by Kaimipono at 11:36 AM | Comments (6) | TrackBack

Scentvertising, Bubbles, and the Battle for Mindshare

I serendipitously encountered two bellwethers of commercial culture today. The WaPo looks at retailers' increasing use of fragrances to enhance consumers' moods. Is this effort to get people in a buying mood a bit like subliminal advertising? Some unexpected nuisance issues arise:

The American Lung Association has received several complaints about scented stores, spokeswoman Janice Nolen said. The fragrances have triggered flare-ups for asthma sufferers and those sensitive to certain chemicals. "I don't want to sound like the Grinch," Nolen said, but "sometimes these fragrances can be a barrier to people." Evelyn Idelson . . . is one of them. She first noticed that her laundry detergent was scented. Then her dishwashing liquid. Now, she said, everything smells. "I can't stand it," she said. "I think it's an invasion of personal space."

The California Milk Processor Board has responded to such complaints, removing ads that smelled like cookies. "Taunting [the obese] with the smell of off-limits cookies was just cruel, they said." Given the parlous state of many Americans' finances, perhaps Debtors' Anonymous should launch a similar campaign for all luxury goods.

But then again, we'd never say the same thing about images of products, would we? Perhaps it turns out that scent is more visceral than sight:

"You smell a rose, and your brain doesn't go, R-O-S-E," said Charles S. Zuker, a researcher with the Howard Hughes Medical Institute. "Your brain recalls what a rose is like." Daniel Lieberman, an associate professor of psychiatry at George Washington University, called smell the most "primitive" of the senses. Odor receptors in the nose are actually brain cells, he said.

So I suppose scent is in a category of its own.

But for those frustrated with all-pervasive commercial culture, there is another alternative: self help. Harvard's Berkman center recently had a panel on "culture jamming," including many leaders in cyberactivism. I was intrigued by Ji Lee's bubble project, which encourages renegade "taggers" to scrawl commentary, in bubbles, on ads:

Our communal spaces are being overrun with ads. . . . Once considered "public," these spaces are increasingly being seized by corporations. . . . Armed with heavy budgets, their marketing tactics are becoming more and more aggressive and manipulative. The Bubble Project is the counterattack. . . . Once placed on ads, these stickers transfom the corporate monologue into an open dialogue.

I suppose many will deem the Bubble Project illegal art, or mere graffiti, and may even think Ji guilty of inducing copyright infringement. But I think it's worthwhile hearing his side of the story, and thinking about the ways in which ordinary citizens can try to avoid (or undermine) a barrage of commercial messages. As Hannibal Travis notes, there is a "battle for mindshare," whether we like it or not.

PS: This is a very interesting disclaimer from the FAQs of the Bubble Project:

Q: Is it legal to place bubbles on top of ads?
A: No, it's illegal. It's consider[ed] vandalism to deface any public or private message. If you are caught, you may be subject for fines and even get arrested. You figure it out on your own. I'm not responsible for your actions.

Art Credit: Aric Obrosey, The Symbolic Lotus of a Thousand Colonels [Sanders]

Posted by Frank_Pasquale at 06:18 PM | Comments (0) | TrackBack

Suggestions Please: Gifts for Those Who Read (And Maybe Those Who Just Pretend)

A recent article from the Wall Street Journal Online details gifts for those seeking “High I.Q. Décor.” Apparently people buy skulls (for that Hamlet moment we all have sooner or later I guess) or books by the foot. Yes, you read that correctly: books by the foot a.k.a. “insta-libraries”:

sales of insta-libraries, including editions in French and German, are up 140% this year. "I'm not sure if those folks knew how to read those languages," says Ms. Wyden [a specialist in books by the foot] of some recent customers. Prices range from contemporary fiction for $50 a foot to leather-bound classics for $400 a foot. … [One client] include[s] private-equity king (and board member of the New York Public Library) Stephen Schwarzman and his wife, Christine, who Ms. Wyden says spent $200,000 on books for their Park Avenue triplex, including pastel-colored books for a bedroom antechamber and movie-reference works and academic books for the family room. Through his spokesman, Mr. Schwarzman declined to comment.

The last part of the quote reminds me of scenes in Hannah and Her Sister’s and The Moderns where artist characters must face buyers interested in how much wall space will be covered by a canvas or whether the art matches blue walls. In a further moment of irony the article notes “Not everyone approves of decorating to look brainy. ‘Queer Eye’ interior designer Thom Filicia compares it to wearing eyeglasses without a prescription. ‘It's creating a façade,’ he says.”

All of which leads to an offer and a request for help. As Christmas approaches and gifts are on the mind I offer a few possible books to buy for those who read or for your own pleasure with gift cards to come. In return I hope that the readership will share the names of books they recommend or books that have received acclaim but may not be so worthwhile.

To start things off I recommend my friend John Scalzi’s book Old Man’s War. It’s a science fiction novel, but I believe those who want to enjoy a good story filled with private military companies and more will like it. Don’t take just my word on this one: Instapundit liked it as did Eugene Volokh and Professor Bainbridge . Not to mention it was was nominated for a Hugo Award and won the Campbell Award for best new writer in science fiction. If you want a more recent book of John’s try The Android’s Dream.

For those interested in intellectual history John Gribbin’s In Search of Schrödinger's Cat and Schrödinger's Kittens and the Search for Reality are both great reads (although I should warn that quantum theory can be most unsettling to one's view of reality). In addition, I have just started James Landale’s The Last Duel (in part because of confusion about a similar book Kaimi mentioned to me) and have enjoyed the interplay between the specific story of the duel in question and the history of dueling in general.

Last I suggest two all-time favorites: Haruki Murakami’s The Elephant Vanishes and Mark Helprin’s A Winter’s Tale . Both writers pay close attention to the use of language such that I believe anyone who enjoy's excellent writing will enjoy them on that score alone. I can also say that each time I have given a copy of either book to someone they have enjoyed it, but Helprin’s work is a bit more accessible, and at least two friends have said they could not stop reading A Winter’s Tale once they began reading it.

Posted by Deven_Desai at 10:09 PM | Comments (6) | TrackBack

Civil Procedure to the Rescue: Suing the Big Guys

The NY Times has a small entry about a frequent problem: lack of customer support for a computer (scroll down to "You Got Served" to read the entry). In this case, the customer apparently tried to use Dell Computer's customer service resources for five months including 19 phone calls. When those attempts failed to result in a fixed or new computer, he sued Dell. The catch: he provided service of the lawsuit via a kiosk in a mall. Dell failed to appear, and the customer won a default judgment of $3,000.

Posted by Deven_Desai at 04:50 PM | Comments (5) | TrackBack

Fisking Posner on Inequality

In a recent post on the B-P blog, Richard Posner addresses soaring inequality. In the U.S., "since 1980 the percentage of total personal income going to the top 1 percent of earners has risen from 8 percent to 16 percent." He concedes a few bad effects from this situation, but ultimately concludes that, aside from upping the estate tax, nothing should be done. My favorite part of the post involves Posner's speculation that "[m]assive philanthropy directed abroad can interfere with a coherent foreign policy;" fortunately, the administration is already on the case.

It's astonishing how assiduously Posner ignores the work of Robert H. Frank. In 20 years of rigorous articles and books, Frank has documented over and over the ways that growing inequality harms society. Some of us in the legal profession have applied his theories; Cass Sunstein on cost-benefit analysis, Richard McAdams in Relative Preferences, and my own work on luxury health care and the rise of low-volume, high-margin business models in IP.

But in this post, and even in longer treatments of the subject, Posner ignores the leading American theorist on the consequences of economic inequality. Frank takes his libertarian critics seriously, but somehow falls under the Posner's radar. (Even in articles published in Westlaw, where a search for [au(posner) and ("robert frank" or "robert h. frank")] got no hits evidencing engagement with Frank's work on inequality.)

In what follows, I try to "fisk" Posner's account of the effects of inequality.

From: Should We Worry about the Rising Inequality in Income and Wealth?--Posner

[An excerpt of Posner's post is below; my comments are in italics.]

What are the causes, and what are the effects, of this trend in the income (and of course wealth) of the highest-earning segment of the distribution? . . . . Marginal income tax rates on the wealthy have not declined much in recent years,

What were they during the last war?

however; but the income tax rate cuts since 2001 have favored the wealthy. Another and more important factor in the recent wealth surge is a growing return to high IQs; outstanding success in highly complex fields such as finance and software is highly correlated with high levels of intelligence.

This is intuitively plausible, if we think about the vast ranks of people making between, say, 50 and 350K per year in such fields. But you said you'd be focusing on the very top. Do you really think that breaking out from, say, 200K p.a. to 1M p.a. is so highly correlated to IQ? Has anyone done good empirical work disaggregating positive things like drive, ambition, intellectual and personal skills, and negative or neutral things like connections, luck, nepotism, insider knowledge, etc.?

And increased size of markets as a consequence of increased international trade provides greater returns to successful innovations.

I am more interested in the effects of the increasing incomes of the rich--though one might ask: are there any effects, other than those that are perfectly benign? Even though the federal income tax is increasingly a proportional rather than a progressive tax (though it is still somewhat progressive--the average tax rate for the top 1 percent of earners--24 percent--is roughly twice that for all federal taxpayers), the more skewed the distribution of income, the higher the proportion of taxes that is paid by the rich.

As are the enjoyment of the benefits of order, as Lincoln Filene noted.

And in fact the top 1 percent of earners pay more than one-third of all federal income taxes today, which is a boon to the rest of the population. Very wealthy people also provide patronage for the arts, funds for high-risk ventures (actually, art is one of those ventures), and money for philanthropic enterprises.

As Stephanie Strom reported in the NYT, just about 10% of charitable contributions go to the poor. There isn't much redistribution going on here.

And there is very little envy of the rich on the part of other Americans, in part perhaps because of the much-derided but very real "trickle down" effect.

Again, some evidence? Some links to something validating the trickle down effect? At this level of abstraction and lack of support, one can just as easily tell a "just so" story about an auction effect: higher earners bidding away relatively fixed resources (be they doctors, nonrenewable energy, or land near a train stop) from the rest of society. Posner doesn't merely fail to weigh the "trickle-down" effect against the "auction effect"--he doesn't even mention the latter.

This is due partly to philanthropy but more to the enormous consumer surplus generated by products such as Microsoft Windows, the brainchild of persons who are now billionaires.

Hmmm--did various FUD strategies used to deter competitors also increase consumer welfare?

It is also due in part to the fact that, given diminishing marginal utility of income, income increases at lower levels in the income hierarchy increase personal welfare more than increases at higher levels do.

Given "diminishing marginal utility of income," we really shouldn't worry that much at all about progressive taxation on people who earn, say, over 1 million dollars per year, or have $20M in wealth. But I don't expect Posner will be deploying the concept in that direction any time soon.

Moreover, real wealth is a function of improvements in the quality and variety of products and servic