Archive for January, 2007
posted by Michael Abramowicz
David Leonhardt’s Economix column today suggests that prizes may be a useful way of stimulating innovation. His primary example is Netflix.com’s million dolar prize for any one that can improve its movie suggestion algorithm by 10%. The current best team is at 6.75 percent. Netflix may be better positioned than most companies to be able to offer prizes that will provide the winners reputational benefits that may exceed the value of the prize itself, but Leonhardt may still be right that prizes are an often overlooked means of accomplishing corporate goals.
The Netflix.com prize is an example of “crowdsourcing.” The web site Innocentive contains many such crowdsourced offers. If, for example, you can develop a pressure sensitive adhesive for re-sealing flexible bags for salty snacks (the adhesive must not adhere to potato chips or hands reaching in to take out chips), you can make $50,000 (plus the eternal gratitude of me, a Doritos connoisseur). An advantage of this approach over conventional sourcing is that the project sponsor does not need to assess the quality of those who may work on the project.
Why do we not see more crowdsourcing via prizes? See my comments after the jump.
posted by Scott Moss
A few days ago I finished drafting my paper for this Friday’s UCLA Law Review Symposium, Constitutional “Niches”: The Role of Institutional Context in Constitutional Law”. You can download my paper here; it’s very much a draft, and I’ll be busily working on the final version over the next two or three weeks, so I’d love any feedback!
For anyone interested in the topic and in/near L.A., the conference looks like a really tightly-packed day of Con Law bigwigs: Fred Schauer (whose work I really admire, though my paper notes an exception to one of his theses); Cynthia Estlund (the conference’s resident employment law bigwig); John Yoo, formerly of the Bush Admninistration (will he offer more “tortured” interpretations of executive power and detainees’ rights against torture?); Dawn Johnsen, formerly of the Clinton Administration (most likely to have her torture authorized by John Yoo?); and many others, but this list already is getting too long. Don’t ask how I got into this crowd — I’m just happy to be there; Paul Secunda and I feel like we’ll be the kids at the grown-ups’ table!
I haven’t written a real abstract yet, but here’s an informal one:
The paper notes Fred Schauer’s criticism that First Amendment law gives too little consideration to how speech rights should vary in different institutions (e.g., government institutions sponsoring arts or election speech; obscenity/pornography being judged similarly whether in print, on the internet, over the phone lines) — but the paper notes one area in which institutional context appears to be given too much consideration. Specifically, would-be speakers located within certain government institutions — students in public schools, employees in government workplaces, and prisoners — have far lesser speech protection; rather than apply heightened scrutiny to speech restrictions, courts substantially defer to those institutions’ speech restrictions and actually apply different legal “tests” in each of the three contexts. Courts rarely explain why different tests apply in these areas, so the article, partly based on economic analysis, (1) tries to discern, as a descriptive matter, the reasons courts apply less speech-protective tests in these contexts and (2) criticizes those reasons as exaggerations of the uniqueness of the three institutions (schools, prisons, and workplaces), or at least finding that those reasons vary in persuasiveness among the three institutions. Ultimately, the article concludes that courts should apply not institution-specific legal tests, but standard heightened scrutiny, to speech rights claims in these institutions, just as it does under the Equal Protection Clause.
posted by Frank Pasquale
My appearance on David Levine’s Hearsay Culture show recently showed up on iTunes–somewhat ironically given my repeated criticisms of the great and terrible Jobs. As I listened to part of the show, I was struck by how much the legal analysis of search regulation was dependent on future business and technology developments. If Google’s dominance in the market continues to grow, then one range of regulatory regimes seems necessary. But if there are diverse successful search engines, a wholly different approach is plausible.
The whole exercise reminded me of Warren Wagar’s fascinating book, A Short History of the Future, which tries to envision the next 200 years of world history. Projecting tech trends that far out must in part be in an exercise in fantasy–but on the other hand, the very process of doing so is a humbling reminder of how much events depend on utterly contingent developments that came before.
For that reason, perhaps, the old “long-form” scholarship of the big law-review article may be becoming increasingly ill-suited for rapidly changing areas of technology. Perhaps that’s why the recent Wu-Yoo debate on net neutrality, or Wu’s even more recent take on the future of indie movie gatekeeping, is so refreshing. It makes little sense to develop a vast architectonic theory for a mandala of protean corporate players.
On the other hand, we can’t let the mere mutability of the tech landscape cow us into passivity. There is no neutral baseline in these fields–they are already so saturated with government intervention in the form of IP rights, regulation, etc., that it makes no sense to characterize any given “noninterventionist” move as promoting the unalloyed efflorescence of the market. Whoever wins any given battle among content providers, intermediaries (like search engines) and network operators (like phone and cable co’s), the result will be due to a lot of prior lobbying and shaping of the law–whatever stance legislators and regulators take heretofore.
Photo Credit: LongView/Flickr, “Pike’s Fortune Teller.”
posted by Scott Moss
Some legal research the other day unearthed a hilarious-in-retrospect account of the first online legal research service — a (pre-)internet startup from almost 50 years ago whose success-and-seediness story is eerily similar to those of more recent tech startups:
Law Research Service is a child of the computer age. In 1960, Hoppenfeld, a lawyer with some background in computer technology, perceived that computers could greatly facilitate legal research. He concluded that a practical system could be developed in which thousands upon thousands of court opinions would be fed into a computer, so that when a legal problem was submitted to the machine it would then select and retrieve all the relevant precedents . … [L]awyers would … pay an annual subscription and a small fee per inquiry. … Similar ideas for marrying computers to the law have been put forth but it seems that LRS was the first such legal information retrieval system to be tried commercially.
Sanders suggested a public offering which would raise not only enough money to cover the LRS’s debt … but would permit LRS to expand its computer library to cover decisions of the federal courts as well as those of the New York courts then already on tape.
Globus v. Law Research Service, 418 F.2d 1276 (2d Cir. 1969) (emphases added to the phrases that made me smile). I just wanted to share this as a nifty piece of legal history trivia, not so much comment on it… but I do have two quick points to make in the “more things change, the more they stay the same” department:
(1) The reported case was a now-familiar type of securities fraud lawsuit: alleging shady practices to raise capital for a tech startup.
(2) Between the financing problems and the “small” fee per inquiry business model: Is there something in the genetics of tech startup visionaries that they assume they can provide huge quantities of information to the masses without much means of actually making money?
posted by Frank Pasquale
Is there a doctor shortage? Judging from the fact that physician salaries in the US are much higher than in comparable OECD countries, and given that leading trade associations and experts finally are calling for the training of more doctors, you might think so. Consider the Association of American Medical Colleges’ position, reported in the Chronicle of Higher Education:
Instead of a glut, experts now fear the nation will face a serious shortage of physicians just when the aging population will need them most. That stunning about-face began in 2002 with an admission by the Association of American Medical Colleges and other groups that the surplus projections by health-care analysts and policy makers may have been a mistake. “It is now evident that those predictions were in error,” the association stated last year in a report that called on medical schools to increase their enrollments by 30 percent by 2015, both by expanding existing schools and creating new ones.
When I made that point at a health law workshop in 2005, some skeptics quickly piped up: “That’s contestable. Some people think there are way too many doctors.” Neighsayers pop up in the Chron. article, too:
David C. Goodman, a professor . . . at Dartmouth Medical School, [says that] “[r]ather than spending more resources on training more physicians, we should be focusing on building more-efficient delivery systems.” . . .Simply graduating more physicians will not ensure that care is getting to the people who need it most, the Dartmouth researchers argued. Most will probably crowd into regions of the country that already have large numbers of doctors, rather than moving to rural areas or inner cities where more medical care is needed. A larger number of graduating physicians also does not guarantee that the physician work force will be appropriately distributed among specialties.
As if the government couldn’t use its subtantial role in funding medical education to condition support on schools’ addressing such issues.
Such advocacy appears increasingly irresponsible as the US imports more and more medical personnel away from less developed countries (for example, “604 out of 871 medical officers trained in [Ghana] between 1993 and 2002 now practice overseas.”). Yet reporters, ever-eager to give the appearance of objectivity, continue “balancing” overwhelmingly dominant positions with half-baked contrarian challenges.
The endless debate over the physician shortage reminds me of a classic administrative law issue–the “trans-scientific fact,” or factual judgment infused with values and assumptions about future policy. Certainly the statement “there is a doctor shortage” can never be as objective as, say, “the earth orbits the sun.” But when someone challenges it in the face of massive consensus to the contrary, don’t they have the obligation to at least respond to the most basic arguments undermining their position? And don’t journalists have an obligation to ask these types of questions? Without that kind of substance, objectivity becomes mechanical, a mere tool for the “social construction of ignorance.”
Photo Credit: Flickr/sarcasmo, “Doctor Come Lately.”
posted by Nate Oman
I realize that this is antediluvian in blog time, but last Friday Paul Horwitz had a very interesting post at Prawfs about teaching the Mormon Cases in his Law & Religion class. The Mormon Cases, of course, are the series of the decisions issued by the U.S. Supreme Court at the end of the nineteenth century holding that various laws designed to punish Mormons for polygamy — criminal sanctions, disenfranchisment, and confiscation of property — did not violate the Free Exercise Clause. These cases hold a special place in my heart, in part because it was in first studying them that I became interested in law and second because of my family and religious history, I can’t help but think of these cases as my constitutional patrimony. (Paul’s post also reminds me that I really need to get my paper on the Reynolds case finished and sent off to the law reviews!)
His provocative suggestion is that profs who teach these cases ought to include in their materials the Revelation that Wilford Woodruff, then president of the Mormon Church, published in 1890 announcing the Church’s abandonment of polygamy. He writes:
posted by Eric Goldman
As reported by the Washington Post, an interesting intellectual property dispute is brewing in the real estate appraisal business. On one side are traditional real estate appraisers, who charge several hundred dollars for an appraisal that typically involves an onsite inspection. On the other side are online appraisal services that, relying on their databases and some algorithms, offer lenders an instantaneous appraisal at a small fraction of the cost.
The traditional appraisers are upset because the online services may be extracting information from their appraisals and using that information to improve their databases (and thus the accuracy of their online appraisals). Taken to its logical extreme, as online appraisers get better databases by capturing data from the traditional appraisers’ inspections, traditional appraisers will destroy their own industry.
Not surprisingly, the traditional appraisers are looking for ways to preserve their market niche, and intellectual property doctrines can be great tools to hinder marketplace competition. So the WaPo article mentions that the traditional appraisers are considering their copyrights in their appraisals. After all, traditional appraisers put in their sweat of the brow, so shouldn’t they be rewarded? (The article provides some good quotes reflecting this paradigm).
We know how this argument goes. Copyright doesn’t protect the labor invested to generate facts. Appraisers probably can copyright the report in its entirety, and they may even be able to copyright their specific price estimate (see, e.g., CDN v. Kapes), but there should be no way for appraisers or anyone else to obtain copyright protection for a home’s basic specifications (e.g., square footage, age, number of rooms). As a result, copyright law does not provide appraisers with any effective way to restrict online databases from extracting facts from their reports. Thus, if traditional appraisers are looking for a tool to restrict competition from online factual databases, copyright law may not be very helpful.
Even if copyright law isn’t availing, traditional appraisers have other tools at their disposal, including:
* providing services that online database providers can’t, such as the increased accuracy associated with the onsite inspections.
* restricting access to the appraisals. Right now, it appears that the biggest online database service gets some data by providing an online tool for appraisers to submit their reports to lenders—thus, allowing them to extract facts from appraisals that cross the network. Traditional appraisers could try to discourage lenders from using this delivery service, thereby making it harder or impossible for the online service to see the appraisals. Alternatively, if they keep using this delivery service, traditional appraisers could negotiate a contract that limits the service’s ability to extract facts. (The contract is probably some standardized click-through agreement, but it’s negotiable in theory).
* if traditional appraisers really think they are losing money, they could just increase their fees to lenders to cover the lost value (good luck!).
But despite these options, the long-term prognosis may not be very good. A good appraisal always will need an onsite inspection, but just about every other aspect of the appraisal business can be replicated or eliminated through online mechanisms. Thus, it could be that the Internet is disintermediating the appraisal industry, and no amount of rear-guard intellectual property saber-rattling will change that fact.
posted by Michael Abramowicz
Major League Baseball is reportedly entering a deal that would shift its Extra Innings product, which has been available to up to 75 million customers, to being available exclusively on DirecTV, which currently has only 15 million subscribers, for the next seven years. My primary reaction to this has been genuine sadness. Watching baseball games is my number one hobby, and my house can’t get DirecTV signals because of nearby trees. It did occur to me that if I chopped down my neighbors’ trees, I would probably do a year in jail, which would leave me six years to enjoy the games. More likely, I’ll have to find a new hobby besides watching baseball. Other alternative approaches to following the Mets — going to a sports bar, watching on my laptop — just won’t cut it.
But I’m also intellectually puzzled. How is it possible that it ends up being more profitable for MLB to sell Extra Innings as an exclusive franchise? Even putting aside possible loss of fans and thus revenue on other products (such as tickets), I would have guessed that whatever MLB could have received in nonexclusive deals for 75 million customers would be greater than what MLB could receive in an exclusive deal for 15 million customers. Obviously, that guess would have been wrong. What explains this?
A partial explanation is that the subscriber base for DirecTV is not fixed. If all cable Extra Innings subscribers could be expected to just switch over to DirecTV, then the initial subscriber populations would be irrelevant to the revenue calculation. But many people won’t — either because they (like me) can’t get satellite, or because they have some preference for cable over satellite. So, on reasonable assumptions, the Extra Innings subscriber base will be much lower in the future — and yet DirecTV seems to be able to pay more than everyone combined in a nonexclusive arrangement.
The answer to this market mystery probably has to do with branding. DirecTV expects to have a hipper brand by virtue of its exclusive deals on MLB Extra Innings and NFL Sunday Ticket. The exclusive contract thus sends a signal to consumers. I suppose that this could be an efficient result if consumers somehow underappreciate the virtues of DirecTV, or if consumers who still buy Extra Innings will value it more because others don’t have it. But I’m more inclined to think that the property rule protection that MLB has for its copyrighted shows leads to an inefficient result here, even if one that genuinely benefits MLB and DirecTV.
I generally believe in property rights, but this deal is creating a personal crisis for me that is making me challenge my views. Should the law in some way seek to discourage such deals?
posted by Daniel Solove
I’m very pleased to introduce Professor Scott Moss from Marquette Law School. Scott will be joining us for the next month. Scott received his J.D. from Harvard Law School, where he was an editor of the Harvard Civil Rights-Civil Liberties Law Review. He holds a B.A. in Economics and an M.A. in Media Studies from Stanford University. Scott clerked for U.S. District Judge Constance Baker Motley (S.D.N.Y.), and then worked as a plaintiff’s employment lawyer in New York City at Outten & Golden LLP. He joined the Marquette faculty in 2004.
Some of Scott’s publications include:
* The Advantages and Dangers of Having Procedural Rules and Substantive Rights Vary by Institutional Context, 54 U.C.L.A. L. Rev. ___ (forthcoming mid-2007)
* Illuminating Secrecy: A New Economic Analysis of Confidential Settlements, 105 Mich. L. Rev. __ (forthcoming spring 2007)
* Against “Academic Deference”: Keeping Title VII Alive to Redress Academic Discrimination, 27 Berkeley J. Emp. & Lab. L. 1 (2006)
* Where There’s At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will, 67 U. Pittsburgh L. Rev. 295 (2005)
posted by Frank Pasquale
At Concurring Opinions, we never stop thinking about ways to improve your reading experience. Every so often, we actually come up with something. Our latest innovation: the Snap Tool, which turns your mouse into a previewing projector of any link on the page. Just roll it over a hyperlink, and a little pop-up will appear, displaying what the underlying webpage looks like. (The featured preview illustrated above is the link to “Paro” in my post below.)
We can thank some copyright exceptions for the tool. A copyright maximalist might deem Snap’s previews a “derivative work,” forcing anyone who uses it to ask for prior permission from the previewed website in order to display this thumbnail version. There’s a lot of good law for the opposite proposition–namely, that previews amount to a fair use that does little, if anything, to harm the value of the original work. But, as Ann Bartow has noted, there are some groups seeking to reverse that perfectly sensible doctrine. As far as I’m concerned, tools like Snap are one more reason why we should hope Google (perhaps the world’s premier image previewer) beats them. In today’s world, we need the best tools for processing and mapping information that we can get.
posted by Frank Pasquale
Sherry Turkle is an MIT scholar who’s written some fascinating reflections on how humans relate to computers. As director of the Initiative on Technology and Self at MIT, she’s been pretty enthusiastic about artificial intelligence (AI) and machines that (appear to) think. But she’s started to question the acceleration of these developments recently…in ways that might intrigue lawyers and just about anyone in technology-intensive industries.
Turkle’s research began as she watched children and the elderly interact with more and more sophisticated simulacra of animals:
Children approach a Furby or a My Real Baby and explore what it means to think of these creatures as alive or “sort of alive”; elders in a nursing play with the robot Paro and grapple with how to characterize this creature that presents
itself as a baby seal. They move from inquiries such as “Does it swim?” and “Does it eat?” to “Is it alive?” and “Can it love?”
As any fan of the movie AI knows, these are profound issues in themselves. Turkle worries about a society where children no longer appreciate the difference between the born and the made….and busy adults leave their aging parents with an array of sophisticated toys to entertain them, rather than visiting.
But Turkle’s latest work broadens this concern to the array of technological devices that are becoming indispensable to urban professionals. Have you ever been left “holding the bag” as a friend rifles through email messages or texts someone? If manners are “small morals,” such activities actually represent a shift in our moral lives–toward an intense connection with a cybernetwork, and away from the presence of those around us. The devices become an excuse for constant distraction. Even more importantly, we can get on a “positional treadmill” such that a device like the BlackBerry is less a form of advantage than a necessity to avoid falling behind.
Recalling Borsook’s book Cyberselfish, Turkle argues that these devices create a “new narcissism”–not mere self-concern, but narcissism in the technical sense, of persons who are so fragile they are in constant need of being “shored up.”
posted by Michael Abramowicz
Matthew D. Rablen and Andrew J. Oswald have written a very interesting paper comparing the life spans of Nobel Prize winners and individuals who were nominated but didn’t win. (Hat tip to the Economist.) They conclude that winning a Nobel confers about one or two years of extra longevity relative to being merely nominated for one.
The paper is admirably careful. For example, it exploits variation in the amount of purchasing power provided by the Nobel, factoring in cases in which someone wins only a portion of a Nobel, as a way of teasing out the possibility that extra longevity is a result of the money provided by a Nobel. In the end, the paper certainly seems to boost the conclusion that status is important for longevity, and more broadly, that status is something separate from money that people care greatly about.
Nonetheless, there is reason to be skeptical about results like these. Maybe the population of Nobel winners differs from the population of Nobel nominees. Perhaps the Nobel winners had better health than the also-rans, and this allowed them to do extra work that led to the Nobel, or maybe they had more or fewer children, or maybe they were smarter, or maybe they had better home lives, or just had better genes. The problem, of course, is it’s not feasible to control for all of these things, plus the many that one might not think of.
Here’s a suggestion for a study: How does winning a seat in Congress (or any other legislative body) affect longevity? An advantage of this study is that one might be able to exploit random variables that affect the probability of winning independent of the characteristics of the candidate, such as recent economic growth rates at the time of the election. In the second stage of the regression, the dependent variable would be the expected probability of victory given existing conditions exogenous to the candidate. I realize that it’s hard to assemble the data, though.
posted by Frank Pasquale
I’ve been writing and speaking on search engines a bit this past week, first at Hofstra’s Reclaiming the First Amendment Conference and later on David Levine‘s Hearsay Culture radio show. If you want to hear that show, just hop on KZSU Live tonight at 8PM EST (5PM PST). Or you can wait till it shows up on iTunes…but due to copyright concerns, you’ll miss out on Dave’s superb selection of engine-related music that will accompany the live broadcast. (Nevertheless, any tech law fans will want to subscribe to Levine’s show–he has a knack for enlivening legal topics with all manner of social, political, and economic discussions.)
Whatever you think about government regulation here, search engines are one of the most important tech phenomena to be shaped by law in the 21st century. A few prophetic scholars (like Niva Elkin-Koren and Helen Nissenbaum) saw this about 5 years ago; I’m part of a group building on their work to theorize it now. Our guest blogger Eric Goldman just covered a search conference in Haifa (and a prior Yale confab); he’s also got some very interesting pieces promoting the wisdom of laissez-faire here. James Grimmelmann’s The Structure of Search Law does a nice job of simultaneously describing search law as it stands and proposing modest steps for its development.
As for my own views, I’m afraid I’ll have to refer you to my podcast (and a forthcoming paper I’m co-authoring with Oren Bracha). But if anyone wants to recommend other search law scholarship in the comments, please feel free. I hope to highlight some interesting European work on the topic in a future post.
posted by Allison Danner
There has been a lot of anxiety, but little concrete action, from nation-states about the crimes committed in the Darfur region of Sudan. The powerful Security Council, in particular, has been woefully ineffective. While the U.S. Congress adopted a resolution in 2004 declaring the situation a “genocide,” China has played spoiler in the U.N. body, protecting Sudan from more concrete censure.
The one thing the Security Council could agree on was handing the problem off to the fledgling International Criminal Court (ICC). Even the United States, which for a time played arch enemy to the court, declined to veto the 2005 Security Council resolution referring the Darfur situation to the ICC. Given the hostility of the U.S. to the court, this failure to veto the resolution represented a major victory for the institution.
This referral, however, has had little effect on the crisis in Darfur. The long arm of international law has not yet reached far into the region. Although the ICC’s prosecutor has dutifully reported to the Security Council every six months about the progress of his investigation, he has thus far had fairly little to say.
To be fair, both the refusal of Sudanese authorities to allow the prosecutor to investigate in Darfur and the ongoing crisis in the region have made prosecuting potential perpetrators difficult. Nevertheless, there has been a growing sense of frustration with the desultory pace of the ICC’s investigation. The most visible manifestation of this discontent consists of documents requested by the ICC judge assigned to the investigation and submitted by Louise Arbour, the former prosecutor of the Yugoslav Tribunal (and now UN High Commissioner for Human Rights), and Antonio Cassese, the former president of the Yugoslav Tribunal and author of the UN’s report on Darfur. Each of these documents takes issue with the prosecutor’s conclusion that concerns over victim security precluded him from going forward with prosecutions. The prosecutor responded, disputing the conclusions of the Cassese and Arbour briefs and setting out his strategy on the Darfur investigation.
The ICC’s prosecutor finally has something to say beyond vague promises of future action. He announced this week that he plans to present his first case on Darfur to the ICC’s judges within a matter of days. This is an important step for the ICC. Whether the beginning of actual prosecutions for crimes committed in Darfur will help mitigate the human catastrophe occurring there is an open question. Certainly criminal prosecutions, standing alone, can do little in the short term. If they help galvanize political will to address the crisis, however, they may prove a critical step toward reaching the political solution that the inhabitants of Darfur desperately need.
posted by Nate Oman
I have been thinking about the value of the Bible as a pedagogical tool. I am not much of a fan of the notion that the common law somehow rests on the Judeo-Christian tradition or that the Ten Commandments are the basis of our modern legal system. To be sure, I do think that the Bible has had its influence on our law, but if one is seeking for origins of the common law, I think that feuding norms among the pagan barbarians of northern Europe is a better bet. Still, the Bible is full of law, and I think that this law is useful for its very strangeness. (Also, as a Mormon, I labor under some religious guilt due to the fact that Brigham Young and other early Mormon authorities taught repeatedly that lawyers were the spawn of Satan and essentially on the road to hell. I take comfort in the fact that God is clearly a lawyer.)
For example, a few days ago I gave a brief lecture on the history of contract to my students. One of the points I wanted to make is that contract law is a relatively late development. Early legal systems seem to go to work immediately on issues like ownership of land, inheritance, and crime. Contract comes only later. I illustrated the point by noting that there is an enormous amount of law in the Pentateuch governing everything from ritual purity to what oxen may or may not eat while plowing the fields. There is not much in there, however, on contracts. To be sure there are rules about debt, and covenant, which is a vaguely contract-y idea, figures prominently in Biblical stories. Still, you’ll search Exodus to Deuteronomy in vain for anything like a general theory of contract.
Here is another possible example: Understanding the usefulness of consideration as a formality can be tricky. Fuller argued that forms serve an evidentiary function, but what exactly do we mean by an evidentiary function? Consider the following story from the Book of Joshua. At the end of his life, Joshua gathers the Children of Israel together at Shechem and offers them a choice: Will they promise to serve the God of Israel or not? The Children of Israel insist that they want to covenant to follow Yahweh, and Joshua then leads them through various formalities to make the commitment binding. The text says:
So Joshua made a covenant with the people that day, and made statutes and ordinances for them at Shechem. . . . And he took a great stone, and set it up there under the oak in the sanctuary of the Lord. And Joshua said to all the people, “Behold, this stone shall be a witness against us; for it has heard all the words of the Lord which he spoke to us; therefore it shall be a witness against you, lest you deal falsely with your God.” (Joshua 24:25-27 (RSV))
Why the rock? It is a formality that Joshua goes through to make the promise binding, and its purpose is to provide future evidence of the covenant. Should any Israelite in the future try to serve other gods, then Yahweh can insist that he or she has promised to serve only him. Should the erring Israelite have a convenient lapse of memory, then God can point to the rock. “Look,” he can say, “that rock stands there under the oak tree because you made the promise at Shechem with Joshua.” The formality reduces the problem of proving the contract ex post.
I love this story because of its strangeness. (I always imagine Dell and Microsoft entering into a licensing agreement and setting up a sacred rock someplace in Seattle to memorialize the deal.) Furthermore, it is precisely the strangeness of the story that makes it useful for thinking about the law. Our problem is that we forget how weird our own laws are and therefore can have a hard time seeing clearly what they are doing. In this sense, the Bible is pedagogically useful precisely because it has lost most of its salience in our culture. Most students (even in southern Virginia) are unlike to have the story of the Shechem Covenant at their fingertips. It sounds wierd to them, and that is useful.
Or it may simply be my perverse love of legal anachronism.
posted by Michael Abramowicz
The Academy Award nominations were announced this morning, and there was a big surprise: Dreamgirls, which was a Golden Globe winner and an early favorite to win the statuette, did not even receive a nomination. How could this happen? Let’s turn to Rule 17 of the 79th Academy Awards Rules:
1. A Reminder List of all eligible pictures shall be sent with a nominations ballot to all active and life members of the Academy who shall vote in the order of their preference for not more than five productions.
2. The five pictures receiving the highest number of votes shall become the nominations for final voting for the Best Picture Award.
I’m puzzled. Rule 17(1) instructs voters to “vote in the order of their preference,” but Rule 17(2) seems to indicate that order of preference is irrelevant. Perhaps the language “receiving the highest number of votes” masks some unrevealed process for taking preference into account, but I’ll assume that this is not the case.
What then might have happened to Dreamgirls? Some voters might have reasoned that they ought not waste their votes on movies that they saw as sure to get nominations, like Babel, The Departed, and Dreamgirls, seeking to maximize their influence by focusing on the marginal contenders. If some number of voters miscalculated the strength of Dreamgirls and reasoned this way, the movie could have lost a nomination that it would have won if all voters voted honestly.
What’s the remedy for this? Some kind of preferential voting system might help. There is no perfect system; the Gibbard-Satterthwaite Theorem tells us that any voting rule either must be dictatorial, rule out some candidates altogether, or provide some incentive for voters to reveal preferences other than their true ones. (The Theorem concerns votes to pick a single winner, but we can derive a corollary applying to elections with multiple winners, by recognizing that at some point the algorithm must identify the last-place winner.) Nonetheless, that should not blind us to the fact that some systems may do better than others. At least, we should hope for a system that identifies Condorcet winners when they exist.
Of course, imperfections in picking the nominees may not matter much. Dreamgirls probably wouldn’t have won Best Picture anyway. But the Oscars uses plurality voting for Best Picture as well, and this creates additional difficulties. The system may well maximize something more important than justice: entertainment value. But it’s a bit depressing that our voting regimes for public officials aren’t much better.
UPDATE: One of the commenters cites an article indicating that in fact there is a system for taking into account stated preference. It’s a little mysterious that the official rules don’t mention it. In any event, if you read the article, you’ll see that the preference aggregation approach isn’t a very good one. Voters who understand it should never put their first choice first if they’re pretty confident that it will be nominated anyway, because once your ballot helps to get a film nominated, it isn’t reused.
posted by Dave Hoffman
In what is going to be an annual tradition, I’ll be blogging less over the next month and change, as I attempt to get some writing projects out the door. One I’ve teased here. The other will be a part of the Wake Forest 2007 Business Law Symposium. More on both as they develop further. Progress in the meantime is incremental and sometimes painful. To quote a guy involved in potentially more socially productive enterprise:
“Of course, there is a toll. Even a day later my neck is killing me. My back is sore. My hands are claws and my eyes look like something out of the Reptile House at the Bronx Zoo. “
posted by Nate Oman
My local telephone company is extremely concerned that I might lack information on local Williamsburg merchants. Accordingly, I have received no less than six copies of the yellow pages over the last few months. One of the joys of the yellow pages, of course, is lawyer advertising. Now while I am entranced by the anachronisms of the law and found myself nodding at various points while reading Anthony Kronman’s pseudo-mystical paean to the legal profession gone by, at the end of the day I don’t mind lawyer advertising. The old rules strike me as little more than a cartel to protect the WASP-y legal establishment from competition by hungry outsiders. Down with the barriers to entry!
I did find an ad on the back of the most recent copy of the good book puzzling. It was a for a solo-practitioner specializing in divorce cases and custody disputes. Generally speaking, lawyers like to look stern in their ad pictures, like they are willing to go break the other guy’s knee caps for you if the law suit doesn’t work out. This ad, however, showed a portrait of this attorney with his wife and four, very cute little daughters. Everyone was smiling and happy, the incarnation of familial happiness. What I don’t understand is the logic of using this image to sell divorce services. Is the subtext supposed to be, “Hire me as your divorce lawyer and your family can be as happy as mine?” Initially, I thought that maybe this was an economic thing. Solo practice is tough, and maybe this guy’s ad budget was exhausted by purchasing the back cover of the yellow pages, so he had no choice but to use the family portrait because no other picture was available. The problem with this theory is that there was a separate, posed picture of just the two daughters. It was underneath the big font declaring the specialty in custody battles. The two little girls, however, did have extremely stern, lawyerly expressions on their faces.
Maybe the subtext is that if the lawyer loses, he’ll send his daughters to break your ex’s knee caps.
posted by Michael Abramowicz
A principal reason for the profusion of claims in individual patents is that patentees offer narrower versions of their claims. A court might invalidate a broad claim, yet accept a narrower one. And so, sometimes claim 2 will read something like this: “A method according to claim 1, further comprising …”, with the language following adding some additional feature of the invention. (The more features in a claim, the narrower the invention.) Even understanding this approach, I’ve always found that it makes patents frustrating and confusing to read.
This approach also produces a practical problem. Let’s suppose that I believe that I have patented a version of the peanut butter and jelly sandwich, but just in case a court disagrees with me, I’d like to point to ten additional features of my invention that could be used to narrow my claims. The challenge is determining how to group these. For example, claim 2 could be “The invention of claim 1, further comprising” five of the features. But I would rather add only four of the features if I can get away with it. In theory, I could have a total of 1024 (= 2^10) claims, to cover all combinations of possible additional features, but that is cumbersome and expensive.
It would be nice if one could draft patents in a kind of collapsible outline form. (If you don’t know what I mean, see this example of a collapsible outline.) One’s broadest claim would appear without any need to click on a “+” sign. Narrower versions of the claim could be viewed by clicking on “+” signs, revealing either additional elements of a claim or, indented below a particular element, narrower versions of those elements (or, recursively, of subelements).
A possible counterargument is that such cascading claims would be easy to read on a computer, not so much on paper. I’m skeptical, though. I think it would be simple to adopt typographical conventions that would make it easy to read such claims on paper, too. The elements constituting the broadest claim could be in Roman type, with everything else in italics. As with the collapsible outlines, different indent levels would specify narrower versions of claims. Dividers could be used to separate alternative means of narrowing a claim (so that one could patent the almond-butter-and-jelly sandwich and the cashew-butter-and-jelly sandwich). I would show you just what I mean, but it’s not easy with this blogging software!
Granted, this is not a patent reform priority, and the PTO would need to develop some new means of calculating application fees. But are there any substantive or stylistic reasons to oppose such a reform?
posted by Kaimipono D. Wenger
A few weeks ago, I posted a request for information about where colloquia or workshopping programs are. (There were not a whole lot of responses at the time, perhaps because of AALS timing — please feel free to weigh in if you haven’t yet done so.) One reader, a junior professor, e-mailed the following question which I thought was worth a follow-up post:
I saw your post about Solum’s suggestions about getting around and workshopping papers. Was there any discussion of whether it is permissible/proper/polite/good etiquette to contact schools about doing workshops? I always had the sense that (somewhat like lateral hiring), schools found you. Am I wrong about that? Because I agree with Solum that workshopping is the best way to get your name and your stuff out there. Just curious.
What is the best way to put out feelers or contact a school about workshopping? Do any of our readers or participants have suggestions or comments?