Archive for 2006
Possible Empirical Support for Corporate Social Responsibility: What Would Uncle Milty Say?
posted by Deven Desai
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.”
December 21, 2006 at 2:48 pm
Posted in: Uncategorized
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Eye-opening op-ed about Holocaust denial
posted by Kaimipono D. Wenger
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?”
December 20, 2006 at 11:36 am
Posted in: Current Events
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Scentvertising, Bubbles, and the Battle for Mindshare
posted by Frank Pasquale
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]
December 19, 2006 at 6:18 pm
Posted in: Advertising, Anonymity, Privacy, Property Law
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Suggestions Please: Gifts for Those Who Read (And Maybe Those Who Just Pretend)
posted by Deven Desai
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.
December 18, 2006 at 10:09 pm
Posted in: Uncategorized
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Civil Procedure to the Rescue: Suing the Big Guys
posted by Deven Desai
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.
December 16, 2006 at 4:50 pm
Posted in: Uncategorized
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Fisking Posner on Inequality
posted by Frank Pasquale
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.
December 16, 2006 at 10:26 am
Posted in: Economic Analysis of Law, Intellectual Property, Legal Theory, Technology
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The Sesquipedalian Septuagenarian
posted by Frank Pasquale
That’s the Boston Globe’s apt appellation for Judge Bruce Selya of the First Circuit Court of Appeals. Howard Bashman interviewed the Juvenalian jurist a few years ago; the Globe adds a well-deserved profile.
Selya has a knack for combining linguistic raras aves, snappy dismissals, and an academic’s detachment. Opiniones ipsa loquitur:
This is a ghost ship of an appeal. One hears the creak of the rigging, the groan of the timber, and the muted sound of voices through the fog, but there is nothing solid to be grasped. In the end the appeal, like the ghost ship, vanishes into the mist, leaving things exactly as they were. The tale follows.
Sanchez v. Puerto Rico Oil Co. (1994). As the Globe reports, “he opened a decision in a libel suit against the Boston Phoenix by writing: ‘The oenologist’s creed teaches that we should drink no wine before its time. Much the same principle applies to summary judgment; it is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record.’”
You may be wondering at this point: Is Judge Selya simply bored? Is this merely vaporous bloviation? Is Judge Gertner right to be chary of his verbal purfle, and to insist that “We need to be as clear as possible”?
At the risk of being accused of praeteritio, I don’t think so. I, for one, see Selya as a Noah of language (or King Azaz the Unabridged), shepherding endangered words into a genre desperately in need of the verve, variety, and precision unusual language preserves. Perhaps one might argue that judicial language ought to be as dry and neutral as possible, to stylistically manifest the ideal of a “government of laws, not of men.” But the law is ultimately written by individual persons, and to the extent a jurist’s bons mots illustrate that point, they advance rather than obscure important truths about our system. As in Robert Lowell’s Epilogue, “why not say what happened?”
And as in one choice Selyan phrasing (recalling Jackson on finality): “We need go no further.”
December 15, 2006 at 7:40 pm
Posted in: Humor, Law and Humanities
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Chained Melodies
posted by Frank Pasquale
The record industry is reportedly steamed that iPod users only buy, on average, 22 songs per device via iTunes. How could it possibly be that people aren’t rushing to fill up their iTunes library? Who wouldn’t entrust their music to a fragile digital demimonde so shackled by DRM that its best physical analogue would be CD’s chained to a bike rack? (The Zune makes the extraordinary concession of permitting one to “squirt” songs wirelessly for–get this–three days or three plays.)
After a couple of songs of mine disappeared during a computer switch, I swore the whole iTunes-purchase thing off. I get CD’s now, buying far less than I would if I could just get durable copies of songs I like. DRM is designed to minimize piracy, not to maximize sales, a “cut off your nose to spite your face” strategy long ago skewered by McKinsey & Co.
But what I find even more strange about the whole situation is the rigidity of pricing. Forget about the obvious equity issues–the almost spiteful flouting of the the principle of nonrivalry in consumption involved in denying content to those with no chance of paying. The industry and its partners appear to be shunning even profit-improving discounts. As Chris Sprigman noted in The 99 Cent Question, 5 J. Telecom. & High Tech. L. 87:
In 2003, the Rhapsody download service . . . [briefly] offered tracks at 99¢, 79¢, and 49¢. The prices do not appear to have been differentiated according to quality. . . . Rhapsody sold three times as many of the 49¢ tracks as the 99¢ tracks. Given that the marginal cost of selling each track is virtually zero, the 49¢ price yielded greater revenue. . . . Had Rhapsody sorted the tracks by quality (measured by demand at the previous uniform 99¢ price), it could have enjoyed additional sales for the lower-quality tracks (sales that would be profitable if the price Rhapsody pays to the major record labels for licenses to particular tracks were also varied to track demand), and maintained its margins for the higher-quality ones. But for some reason the music industry hasn’t absorbed this lesson.
Indeed. The difficult thing for everybody to realize is that there may well be no “right price” for digital music. Rather, the most efficient solution would have to involve a broadbased tax on either (or both) devices and ISPs. (As The Register puts it, “Free legal downloads for $6 a month. DRM free. [Terry Fisher] explains how.”) Verizon gets it. The RIAA gets it when it comes to compositions and lyrics. Why can’t they get it when it comes to recordings?
Photo Credit: Darwin Bell/Flickr.
December 14, 2006 at 5:55 pm
Posted in: Intellectual Property
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Xoxohth 1.2: The Whys and Wherefores
posted by Dave Hoffman
[This is Part I, Section 2, of the project I announced here. (Part 1.1 is here.) The goal of today's installment is to present a diversity of views on why people spend time on Xoxohth, drawing largely on the voices of posters themselves.]
I’ll start by acknowledging an uncomfortable fact. This project suggests, and perhaps even reinforces, that critique of academic life often bandied about by the popular press: I’m asking a minor question, focusing on the uninteresting choices of marginal members of society, and using a methodology of debatable validity.
I felt bad about this for a while. And then I realized that the next best use of my time is grading: a similar process, but with higher perceived stakes.
Forward. The issue for today is why people continue to spend substantial amounts of time on XO. The question arises from the obvious point that students and lawyers have many ways to spend their time. Most of those ways are unlikely to lead to professional embarrassment if publicized, and may even enable individuals to build reputations for probity and acuity. It is odd, then, that hundreds or thousands of students and lawyers devote significant chunks of their free time to talking anonymously on XO. What gives?
It seems to me that there are a few motivations in play: entertainment, a search for information, the need for community, and the pleasures of transgression. Before we begin, let’s get some reader input. What motivation do you think drives XO’s traffic?
Now that we’re done with the scientific polling, let’s look at the qualitative data.
December 14, 2006 at 5:30 pm
Posted in: Anonymity, Behavioral Law and Economics, Economic Analysis of Law, Feminism and Gender, Legal Ethics, Sociology of Law, Weird
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Why Google is Taking Over the World (of Ideas)
posted by Frank Pasquale
I had just written the post to end all posts–seamlessly interweaving commentary on Fauxlovean grading, Cute Overload, Yochai Benkler, Ze Frank, reality television, Posner as Richard E. Neumann, The NYT Mag. Ideas of 2006 edition, and assorted oddities.
But then I accidentally hit the “back arrow” button, and it was gone.
Had this post been composed in Gmail, a draft would have been there. I cannot tell you how many times that feature has saved me from losing some rapid-fire composition to clumsy hands. Perhaps the auto-draft-save is only a way to assure that Google’s commercial database perpetually records, not only what I write about, but what I’m thinking writing about. But whatever sacrifice of privacy that entails seems rather minor compared to the infuriating experience of watching the winged words of e-conversation drift into the digital ether.
And now comes Google Patent Search, a nice improvement over the already useful USPTO interface.
So however much I may worry about Google, I have to admit, they are masters at organizing information. Governmental regulation here (such as this interesting Finnish intervention) has to take into account any potential drain of resources from a company that’s doing immense good. Geoff Rapp has worked out cognate ideas on “roundabout redistribution” here.
Photo Credit: greenergrassdesigns (great gift ideas here!)
December 14, 2006 at 1:08 pm
Posted in: Economic Analysis of Law, Humor, Intellectual Property
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Balkin on the Subpoena Power as an End-Run Around the First Amendment
posted by Heidi Kitrosser
Very good discussion by Jack Balkin of the administration’s dangerous new use of the subpoeana power. In a nutshell, the administration is attempting to use the subpoena power to create a de facto prior restraint on speech by demanding “any and all copies” of a document, thus making it impossible for a speaker ever to disseminate the document. As Balkin explains, this amounts to an attempted end-run around the very strong judicial presumption against prior restraints on speech — a presumption that applies even to classified information dissemination. See, e.g., the Pentagon Papers case.
December 14, 2006 at 8:36 am
Posted in: Current Events
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A Guide to Grading Exams
posted by Daniel Solove
It’s that time of year again. Students have taken their finals, and now it is time to grade them. It is something professors have been looking forward to all semester. Exactness in grading is a well-honed skill, taking considerable expertise and years of practice to master. The purpose of this post is to serve as a guide to young professors about how to perfect their grading skills and as a way for students to learn the mysterious science of how their grades are determined.
Grading begins with the stack of exams, shown in Figure 1 below.
The next step is to use the most precise grading method possible. There never is 100% accuracy in grading essay exams, as subjective elements can never be eradicated from the process. Numerous methods have been proposed throughout history, but there is one method that has clearly been proven superior to the others. See Figure 2 below.
December 14, 2006 at 1:09 am
Posted in: Humor, Law School (Teaching)
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Lobbying the Jury
posted by Jennifer Collins
The New York Times has an interesting editorial today in which it criticizes the Supreme Court’s decision this week to uphold a murder conviction in a case where members of the victim’s family wore buttons displaying the victim’s picture during the trial. The editorial argues that the buttons “were essentially an argument that the deceased was an innocent victim” in the fight that led to his death. Well, I’m not sure how that follows, unless the words “innocent victim” or the equivalent were displayed across the button. I think it is far more likely that the jury saw the buttons as a sign that a family was grieving, and not as a comment on the defendant’s guilt or innocence. In general, I think issues surrounding displays of emotion by the victim’s family in homicide trials are more subtle than the editorial suggests. Of course the focus of the trial rightly needs to be on the defendant’s guilt or innocence, but I am not sure that means the trial needs to be entirely sanitized of emotion. When I was prosecuting, for example, we had one judge who routinely instructed witnesses who were related to the victim that they had better not cry during their testimony. Instructions like these, or concerns over buttons that do no more than display a photo, seem to me to underestimate the the intelligence and commitment of jurors. I at least have never encountered a juror who seemed to think it would be appropriate to convict an innocent man just to ease a devastated mother’s pain — they recognize that would do nothing to help the family at all. Jurors seem to me quite capable of both empathizing with a family’s pain and at the same time putting those sympathies aside in order to focus on the evidence. Any other thoughts?
December 13, 2006 at 9:56 am
Posted in: Criminal Procedure
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Song of Jersey City
posted by Frank Pasquale
Rick Garnett recently wrote on “cities’ hipness competition.” According to a recent article in New York Magazine, my urban home (Jersey City) has recently won some prize:
To live [in New York now] is to endure a gnawing suspicion that somebody, somewhere, is marveling and reveling a little more successfully than you are. That they’re paying less money for a bigger apartment with more-authentic details on a nicer block closer to cuter restaurants and still-uncrowded bars and hipper galleries that host better parties with cooler bands than yours does, in an area that’s simultaneously a portal to the future (tomorrow’s hot neighborhood today!) and a throwback to an untainted past (today’s hot neighborhood yesterday!). And you know what? Someone is. And you know what else? Right now, that person just might be living in Jersey City.
It’s not just Tyler Cowen who’s rescuing New Jersey from punchline status–even the uberhip NYM is recognizing us (even if we’re shunned by NYC Bloggers). Our hospitals may be closing, but at least we’ve got a hot arts scene.
Of course, the NYM piece focuses not on all of the JC, but only on the “downtown” close to the Hudson waterfront. I live a bit further down the PATH line, in Journal Square. I think a comparison between the two areas may help us answer Rick’s question: “what law can do — e.g., zoning laws, liquor licensing, etc. — to make cities / metro areas more (or less) attractive to the young (or the old, for that matter)”? Can big urbanism work?
December 13, 2006 at 9:52 am
Posted in: Economic Analysis of Law, Empirical Analysis of Law, Legal Theory
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Dateline Perverted Justice: Pedophilia That The Market (And Judith Butler) Can Appreciate
posted by Dan Filler
The NY Times has an interesting article today about Perveted Justice, the group that Dateline has adopted as a highly profitable vehicle for purveying mass anxiety about child sexual offenders. As many people have noticed by now, Dateline has neatly repositioned itself as an ongoing documentary about the battle to ferret out internet pedophiles. Perverted Justice volunteers troll the web, trying to draw in adults who seek hook-ups with kids. Dateline then sets up shop, waiting to capture these faux-meetings on video.
The article notes that this is lucrative business for everyone. Perverted Justice gets $70,000 for every hour of Dateline content. Clearly NBC is raking in the bucks, drawing over 9 million viewers per Pedo-Dateline, as opposed to their usual net of 7 million viewers for other Dateline episodes. And Dateline already has six more “episodes” of Pedo-Dateline in the pipeline for 2007. In Threatened Children and Random Violence, Joel Best explored how child protection activists have developed both economically and politically by tapping into longstanding public conern over child abuse – and particularly child sexual abuse. (Phillip Jenkins has offered related insignts in his book, Moral Panic.) Yet the explicit commercial trade in this anxiety – always present to the degree that such sex panics provide fodder to the daily news outlets – has never been clearer than here.
At the same time, the Times piece notes that some people are concerned that the very act of publicly pursuing and villifying these individuals effectively creates a new form of sexualized text, because by putting the transcripts of these conversations online, the group puts “out for unfiltered, unrestricted public consumption the most graphic sexual material that they themselves say is of a perverted nature.” Judith Butler, in Excitable Speech, makes the point that prohibition and desire are intertwined:
Prohibition pursues the reproduction of prohibited desire and becomes itself intensified through the renunciations it effects… .The prohibition not only sustains, but is sustained by, the desire that it forces into renunciation.
December 13, 2006 at 12:05 am
Posted in: Criminal Law, Culture, Sociology of Law
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Book Art
posted by Daniel Solove
What happens when nerds and art collide? Book art. The National Museum of Women in the Arts in DC is having a really cool exhibit on it:
The Book as Art: Twenty Years of Artists’ Books from the National Museum of Women in the Arts explores the sometimes controversial art form that is artists’ books. Defined as art objects in the form of books, artists’ books combine content and form to create something that is more than a simple container for information. To celebrate the twentieth anniversary of the National Museum of Women in the Arts (NMWA), The Book as Art will feature 108 artists’ books, by 86 artists, from 12 countries, culled from the museum’s collection of more than 800 volumes.
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You can see some of the books at the museum’s website. I sure hope I can stop by to see the exhibit, but right now, alas, I’m staring at a stack of exams. Perhaps I could donate the stack (ungraded of course) to the museum with the title: “Hours of Pain.” Under one interpretation, the artwork would serve as a depiction of the students’ pain in taking the exam. But others might see it as representing my impending pain in grading the exams. I’m sure my dean would understand, as I’d be doing it for the sake of art. . . .
December 12, 2006 at 8:59 pm
Posted in: Articles and Books
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One Step Forward, Two Steps Back?: Empirical Research Rising and Falling
posted by Deven Desai
Just as Crooked Timber has a post about a new book that examines the impact of social science research and how the survey culture has affected how Americans view themselves, the California Supreme Court has heard a case regarding the extent to which the subject of such research can oppose the use of her information. The case is Taus v. Loftus, S133805. It involves the tension between research that may require lying to achieve its goals and the subject’s privacy rights. The defendants, Elizabeth Loftus and Melvin Guyer, are psychologists challenging the theory of repressed memory. When they first encountered the plaintiff’s information, they did not know her name but did have a case file with her picture. The article indicates that the file was “widely distributed in psychiatric circles.” The defendants questioned the story about the plaintiff’s repressed memories and investigated. The researchers’ report did not name the plaintiff but according to the article did include statements from the step mother that the plaintiff “had been a troubled teenager who slept around and used drugs.”
Now here’s the part that may sound familiar to those who followed the HP spying case: the researchers apparently hired a private investigator to dig into the plaintiff’s past and allegedly one of the researchers posed as the supervisor of the plaintiff’s therapist, David Corwin, to obtain some of the information. From the appellate decision the researcher claimed “‘she was working with Dr. Corwin and was actually his supervisor in connection with his study of [Taus].’” And there folks is the intrusion claim before the California Supreme Court. It doesn’t help that the appellate court had evidence pointing to the gathering of information from sealed juvenile court records either: “In light of these circumstances, the unanswered questions as to whether the Solano County files were confidential and, if so, how they were accessed may have a significant impact on Taus’s intrusion claim.”
December 12, 2006 at 2:32 am
Posted in: Privacy
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Criminal Background Checks Of Jurors
posted by Dan Filler
Perhaps it’s necessary, but the decision of Illinois federal court officials to conduct criminal background checks on prospective jurors in selected cases strikes me as troubling. I imagine that both prosecutors and – where feasible – defense lawyers sometimes run criminal record checks on jurors. But once the court system adopts this as a normal part of jury selection – and people learn about it – i worry that it will begin to corrode the jury process. If coming to court means that these records will be dredged up, it seems possible that many ex-offenders (be they drunk drivers or drug dealers) will just stay home. It saves potential embarrassment. And it avoids a pointless trip: these individuals might assume they won’t be selected.
Once a court goes down this path, what is the logical end? There are many factors that may play into an individual’s biases – marital status, bankruptcy history, job expeience, political affiliation, and the like. Just as some jurors will lie about their criminal record, others may choose to lie about these sensitive matters. Should courts engage in the broader background checks that are now available, simply to give interested lawyers additional data about their venire? In a sense, it would put urban lawyers on the same footing as their rural counterparts. Any good small-town lawyer will know, or will bring along someone likely to know, the backgrounds of many potential jurors. But urbanites value privacy, and any policy that tends to undermine that – from criminal background checks, to checks of voting records, to a quick search on ChoicePoint – has the potential to scare off jurors.
I worry about the race effects of this policy. We know that African-Americans are disproportionately represented among those convicted of crimes in America. Relatedly, they are also disproportionately represented among criminal defendants. The decision to engage in widespread criminal background checks on members of the a jury venire may have a disparate impact on African-American jurors. Worse, it could further undermine the actual – and perceived – fairness of the justice system itself.
December 12, 2006 at 12:06 am
Posted in: Criminal Law
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Wasting Genius?
posted by Marcy Peek
Over at MoneyLaw, Jim Chen posted a blog on Juniority
a couple of weeks ago in which he quotes Thomas S. Kuhn as noting that:
Almost always the [individuals] who achieve these fundamental inventions of a new paradigm have been either very young or very new to the field whose paradigm they change. . . . [B]eing little commited by prior practice to the traditional rules of normal science, [these individuals] are particularily likely to see that those rules no longer define a playable game and to conceive another set that can replace them.
Chen applies this reasoning to the world of legal academia, and worries that:
the creeping insistence on an ever larger set of credentials — clerkships, degrees beyond the J.D., VAPs — necessarily delays the physical age at which law professors begin their careers in earnest. Indeed, if Thomas Kuhn’s observation about scientific revolutions holds true in law, we may be wasting some of the most potentially transformative years of individual careers by delaying would-be upstarts’ full-fledged arrival within the academy.
December 11, 2006 at 3:50 pm
Posted in: Law School (Scholarship)
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on exams and motivation (or “good luck on exams!”)
posted by Heidi Kitrosser
Good luck to all students on their exams.
Given that it’s exam time, it only seems fitting that there’s been some talk lately in the blogosphere about motivation. See this terrific first post by fellow C.O. blogger Marcy Peek, and this great little note by Jim Chen over at MoneyLaw.
Here are my two cents. First, I couldn’t agree more with Jim & Marcy that one should frequently remind one’s self of the big picture reasons why one came to law school, why one is struggling through exams, etc. Second, I think it’s also key to find a way to appreciate the day-to-day struggle itself. Sure, there’ll be lousy days, depressing moments. That’s part of being human. But if you can find some joy, purpose and excitement in the day-to-day process, make some good friends along the way, and remember your big picture reasons for going through that process – especially in the not-so-joyful moments — well, that makes for a pretty successful existence, I think.
So good luck and enjoy your well-deserved breaks when exams are done!
December 11, 2006 at 9:24 am
Posted in: Law School
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