Archive for April, 2007
posted by Steph Tai
I just wanted to echo Kim and Alice and thank everyone here for letting me guest-blog this month! It was a fun experience, even though I didn’t end up getting the chance to post as much as I’d have liked to. And it was a rewarding experience, reminding me how far we’ve come since the early days of plopping everything into html; the level and vigor of the discussions extended well beyond that of the posts, into the comments and discussions themselves, which were thorough and thought-provoking. So thanks, and keep up the great work!
posted by Kim Ferzan
I just wanted to thank the entire gang here at Concurring Opinions for inviting me to blog this month. It is always an exciting (yet humbling) experience to expose one’s views to the world, and I continue to be in awe of those who can come up with provocative and useful content on such a consistent basis.
posted by Dave Hoffman
Today’s Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?
The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott’s car, Scott spun Harris’ car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott’s qualified immunity defense; the Eleventh Circuit affirmed.
Justice Scalia, writing for the majority, noted that the “first step is . . . to determine the relevant facts.” Normally, of course, courts take the non-moving party’s version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape “quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate (“We are happy to allow the videotape to speak for itself.” Slip Op. at 5), the Court proceeded to reject the nonmoving party’s version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be “genuine”: the Respondent’s version of the facts is “so utterly discredited by the record that no reasonable jury could have believed him.” (Slip Op. at 8).
Let’s get a bias out of the way. At the Court’s suggestion, I watched the video. I lean toward Justice Stevens’ view: “This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.’” Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees “headlights of vehicles zooming by in the opposite lane.” (Dissent at 2, n.1 – and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.
But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a “verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.” (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.
April 30, 2007 at 1:41 pm Posted in: Criminal Law, Criminal Procedure, Empirical Analysis of Law, Law and Humanities, Law and Psychology, Law School (Scholarship), Legal Ethics, Legal Theory, Supreme Court Print This Post 22 Comments
posted by Dave Hoffman
Three recent events got me to thinking about our reactions to improbable events.
1. Last Friday, I hit the hard-six twice in one roll at an excursion to Atlantic City, the first five dollar bet having been parlayed. The odds of this happening are long (9:1 x 9:1). In retrospect, it is pretty obvious that the dice came down as they did because I had shut my eyes once they left the shooter’s hand. I repeated this same maneuver the rest of the trip.
2. Yesterday, as I sat waiting for the Phillies game to begin, the team held a celebration for the birthday of its extraordinarily strange mascot. The Phillies, for no good reason, decided to tie-in the birthday with the local King Tut exhibit. Six dancing “Egyptian priestesses,” four “Temple guards,” a fire eater, a hula hoop artist, the Phanatic’s “Mummy,” and a belly dancer led the six-foot-six, 300 pound, green monster onto the field. Riding on a camel. I was so horrified by this sight that I put my nose back in a book, hoping that it would disappear. Alas, King Tut himself emerged, painted gold, from a pyramid that had been placed on the pitcher’s mound, and did a loud Steve Martin impression.
3. The Phillies four-four year old pitcher, Jamie Moyer, then proceeded to throw 7 2/3 innings of no-hit ball. An out into the seventh, a young child sitting nearby was reprimanded by a neighbor for whispering the possibility that we were watching history in the making. The bid was broken at the next at bat.
(Photo Credit:Mark Robinson )
posted by Greg Lastowka
With the end of April comes the end of my guest-blogging stint. Many thanks to all of the regular Concurring Opinions bloggers for sharing this space with me. I’ll be back often as a reader!
posted by Dave Hoffman
I have recently posted my symposium essay Self-Handicapping and Managers’ Duty of Care on SSRN and Selected Works. You can read the abstract when you click through, so to convince you to download the essay, I’ll give you a taste of the introduction:
Authors commonly introduce their works in symposium issues with a few disclaiming words. They identify their scholarship as a “symposium essay,” not an “Article”; a “sketch” of an answer, not a fully-fleshed out argument. Casual readers might conclude that law professors are unusually humble and resist trumpeting the novelty and sophistication of their scholarship.
Social psychologists might instead believe that symposium authors seek to avoid reputational sanctions for publicizing arguments they have not fully dressed. Scholars try to signal an excuse for underdeveloped pieces: “I haven’t worked as hard on this paper as I would have if it were a ‘real’ article.” The goal of this excuse-making is simple: disappointed readers will attribute blame away from the author’s perceived acuity and professional reputation.
This is a symposium essay about the psychology of creating such pre-excuses for failure. Rather than focus on academics, I will examine the failings of overconfident corporate managers . . .
posted by Frank Pasquale
Some commenters on my post on the Value of Pets took me to task for being too quick to discount individuals’ extraordinary attachment to their companion animals. I found some support in unlikely quarters–Will Willkinson’s critique of “happiness research” which recently appeared on the Cato Institute’s website. This is the most comprehensive recent comment on the literature of subjective well-being that I’ve seen, and raises all sorts of interesting questions for those who are trying to expand the boundaries of economic analysis.
A little background: A growing number of economists have begun to question traditional measurements of well-being, such as GDP or income, and have focused instead on self-reported “subjective well-being” from interviewed subjects. “Happiness research” has come up with some counterintuitive findings, reporting extraordinary levels of life dissatisfaction in apparently prospering liberal democracies.
Wilkinson takes these social scientists to task for failing to fully describe “the dependent variable—
the target of elucidation and explanation—in happiness research.” He claims there are four main possibilities:
(1) Life satisfaction: A cognitive judgment about overall life quality relative to expectations.
(2) Experiential or “hedonic” quality: The quantity of pleasure net of pain in the stream of subjective experience.
(3) Happiness: Some state yet to be determined, but conceived as a something not exhausted by
life satisfaction or the quality of experiential states.
(4) Well-being: Objectively how well life is going for the person living it.
Wilkinson provides some great arguments for questioning 1 and 2 as hopelessly subjective desiderata for public policy. He quotes Wayne Sumner, a Toronto philosopher, on 2: “Time and philosophical fashion have not been kind to hedonism . . . Although hedonistic theories of various sorts flourished for three centuries or so in the congenial empiricist habitat, they have all but disappeared from the scene. Do they now merit even passing attention[?]” “Life satisfaction” also comes in for heavy criticism, as epiphenomenal of various uncontrollable variables: “people have different standards for assessing how well things are going, and they may employ different standards in different sorts of circumstances.”
Of course, Wilkinson and I go entirely different directions at this point: he tries to argue that the whole line of research is useless, while I think inconsistencies like the ones he points out demonstrate the necessity of more objective and virtue-oriented accounts of well-being. (Or, to be more precise, Wilkinson (like Freud) appears to believe that debates over happiness may ultimately best be settled by brain analysis, while I tend to think the direction of Aristotelian theorists like Seligman & Nussbaum is the way to go.) But his perspective does demonstrate that even those most committed to the idea of individual liberty as a public policy goal are not necessarily wedded to the type of subjectivity in value that would underlie societal recognition of the more extreme claims of pet-owners mentioned in that post.
posted by Frank Pasquale
The tiering of American society has reached one more venerable institution: prisons. California’s self-pay jail system is profiled in the NYT today:
For roughly $75 to $127 a day, these convicts — who are known in the self-pay parlance as “clients” — get a small cell behind a regular door, distance of some amplitude from violent offenders and, in some cases, the right to bring an iPod or computer on which to compose a novel, or perhaps a song.
I’m all for making prisons more humane; as the article notes, “The California prison system, severely overcrowded, teeming with violence and infectious diseases and so dysfunctional that much of it is under court supervision, is one that anyone with the slightest means would most likely pay to avoid.” But I have a feeling such differential treatment may ultimately do more harm than good. By allowing the wealthiest to “exit” the normal jail system, we lose an important “voice” for making it decent.
I’m not saying that these relatively minor offenders should always be thrown in with hardened recidivists. However, I think we could make the system fairer by keying the “self-pay” amount to the income/wealth of the offender. Consider this approach to fines in Finland:
The officer pulled over [a wealthy entrepreneur's] car and issued him a speeding ticket for driving 43 miles an hour in a 25-mile-an-hour zone. The fine: $71,400. . . . The staggering sum was no mistake. In Finland, traffic fines generally are based on two factors: the severity of the offense and the driver’s income. The concept has been embedded in Finnish law for decades: When it comes to crime, the wealthy should suffer as much as the poor. Indeed, sliding-scale financial penalties are also imposed for offenses ranging from shoplifting to securities-law violations.
If the punitive dimension of a prison term is to be diminished for those opting into self-pay jails, perhaps the payment should be reconceived as a fine, capable of inflicting something like the same amount of deterrence as the risk of infection and violence that they are buying their way out of.
posted by Frank Pasquale
Poison in pet food has led to new calls for rethinking law’s valuation of companion animals hurt or killed by torts:
Lawyers, animal-rights activists and pet owners are arguing that most state laws dealing with pets are outmoded and fail to consider that pets play the role of companions in today’s society. They say pet owners whose animal is injured or killed should receive compensation not only for vet bills and a replacement animal — but for emotional distress as well. While legal experts say big payouts for emotional damages are unlikely in the pet-food cases, the lawsuits and large number of pets affected could accelerate a growing trend to give pets more recognition under the law.
Quotes from devastated pet owners suggest their extraordinary attachment. For example, one claimed, of a cat, “She’s not a pet, she’s family. . . . She’s everything to me.” Another discussed the “significant emotional investment my wife and I have in our animals.”
I’ve worried a bit elsewhere about the growing importance of pets in today’s society. I think we may be trending toward an undue anthropomorphism, a tendency to “attribut[e] human characteristics, behavior or emotions to our non-human friends”–and value them accordingly.
I recognize that the capacity to be a good steward for animals and the environment generally is a great virtue. Still, I think this may be a good place to apply recent literature on resilient humans’ capacity for “bouncing back” after “utility shocks.” A person who suffers from the loss of a pet in the same way that others suffer from the loss of a child is certainly due great sympathy. But calibrating legal treatment of such losses to the subjective response of individuals confers society’s imprimatur upon a deep confusion about the relative value of human and nonhuman animals. . . . and may well lead us down a slippery slope toward a recognition of machine rights.
Photo Credit: AGrimley/Flickr.
posted by Kaimipono D. Wenger
An announcement for our readers, from the University of Pennsylvania Law Review:
The University of Pennsylvania Law Review is pleased to announce its second annual Symposium Scholar Essay Competition. We are seeking essay submissions advancing a legal argument related to the 2007 symposium topic on “The Class Action Fairness Act of 2005.” The winning author will be published in the University of Pennsylvania Law Review’s Symposium Issue in Spring 2008, and the author will be invited to Philadelphia in late November 2007 to present the paper at the symposium.
posted by Dave Hoffman
h/t: Belle Lettre
posted by Kaimipono D. Wenger
As noted earlier, Lou Dobbs is upset that more media outlets aren’t using the term “illegal alien,” instead often opting for the term “undocumented immigrant.” Dobbs suggests a conspiracy by the media. But the fact is that critics of the media don’t consistently use “illegal alien,” either. The term often gets shortened to merely “illegals.” (See, e.g., Wash Times, “Bush amnesty blamed for rise in illegals“; Wash Times, “Senate illegals bill near complete“; WorldNetDaily, “Arizona county helping illegals, critic charges“; KTAR, “Employer sanctions for hiring illegals stuck in Senate“; and the lovely article “Illegals go home” that has run in various outlets.)
Supporters of this term defend its use, pointing out that it carries some degree of descriptive accuracy. People labeled as “illegals” have indeed violated a law; therefore, suggest users, such people may accurately be called illegals. Is this reasonable?
posted by Kaimipono D. Wenger
Reader Marc B points out that a Utah state legislator has apparently identified the culprit behind recent illegal immigration problems. The source of the problem? Satan.
Don Larsen, a district chairman, has submitted a resolution equating illegal immigration to “Satan’s plan to destroy the U.S. by stealth invasion” for debate at Saturday’s Utah County Republican Party Convention. Referring to a plan by the devil for a “New World Order … as predicted in the Scriptures,” the resolution calls for the Utah County Republican Party to support “closing the national borders to illegal immigration to prevent the destruction of the U.S. by stealth invasion.”
The resolution is apparently having trouble getting much support in the legislature. Now some might blame politics, or the somewhat unusual nature of the resolution — but I kinda wonder if Satan’s not behind that, too. (It would make sense, no?)
Fortunately, Rep. Larsen and the other legislators will have the chance to ask Satan whether or not he’s really behind illegal immigration. Luck would have it that Old Scratch is visiting town to speak at a local university.
posted by Dave Hoffman
The murder of Kitty Genovese is well known both as a tragedy and as an example of the relationship between crime and distributed responsibility. It is worth remembering that the problem extends beyond violent crimes. I just received a copy of my Civic Association’s electronic newsletter. Such associations seem to spend much of their time alternating between cheerleadering for rising home prices and scaremongering about neighborhood vandalism. Sometimes, the germ of another neighborhood garden project is planted.
In the crime section, I found the following report (copied from original, with typos):
On Monday 4/16/07, between 8:55AM and 2PM, 200 block of S. 10th St., the complainant’s apartment door was pryed open and taken was a laptop computer. 911 was not contacted until after 6PM even though a neighbor saw the door broken at 2PM and the cleaning lady saw it at 3:30PM.
Is the goal here to shame the neighbor and “cleaning lady”? The Civic wants more 911 calls to increase police patrols in the area, despite the City’s evident needs elsewhere. As I understand it, Philadelphia has communicated to the relevant leaders that the way to obtain more patrols is to squeal more. Eek!
I have some doubts that you can create a culture of calling 911 given the Genovese-effect. But maybe I’m wrong. For instance, I’m home today working on grading papers. I’ve noticed that some neighbors from a block over are walking their dogs over to our street to do their business. This seems to me to warrant urgent police action . . .
posted by Frank Pasquale
The Web 2.0 backlash has begun. From the right, Andrew Keen voices a cultural conservatism uneasy with the new egalitarianism of networked media, claiming that the “media and culture industries’ [purpose] . . . is to discover, nurture, and reward elite talent.” He laments the “Napsterization” of old gatekeepers and their replacement by new context providers like FaceBook, MySpace, Google, and ochlocratic intermediaries. I see where he’s coming from, though I think Keen is way too quick to conflate media conglomerates and nonprofits as guarantors of quality.
On the left, Trebor Scholz worries that these new intermediaries recapitulate old patterns of exploitation. The labor of millions on their MySpace page results, most often, in nothing paid to them, and vast sums going to Rupert Murdoch. Scholz questions whether Web 2.0 really brings the decentralization its proponents hope for:
The most central sites of the World Wide Web create massive surplus value and small startups are frequently bought out by the Walmarts of the Internet (NewsCorp, Yahoo, Google) the very moment that they attract sufficient numbers of page views. People spend most time on the sites of these giants and not in the “mom and pop stores.” Almost 12 percent of all time spent by Americans online is spend on MySpace.
Scholz admits that “The picture of net publics being used is . . . complicated by the fact that participants undeniably get a lot out of their participation. There is the pleasure of creation and mere social enjoyment. . . . They share their life experiences and archive their memories. They are getting jobs, find dates and arguably contribute to the greater good.” Nevertheless, he’s raising some interesting questions about the very nature of labor and “just enrichment” in the digital age.
So are social media megasites exploitative?
posted by Kaimipono D. Wenger
Pundit Lou Dobbs criticizes “the mainstream media” for what he calls complicity in hiding problems relating illegal immigration. In a piece titled “Big media hide truth about immigration,” Dobbs argues:
The mainstream media are complicit in advancing this thinly veiled blanket amnesty. Instead of asking and answering important questions about why our immigration laws aren’t being enforced and why we’re permitting pervasive document fraud, the national media seem hell-bent on trying to obfuscate the issue, shamelessly playing with language, equating legal immigration with illegal immigration while obviously trying to preserve the illusion of objectivity.
And how was it that I happened to be reading Dobbs’ essay?
posted by Melissa Waters
Put this one in the category of “too good for a blogger born and raised in the land of beauty pageants (excuse me, scholarship/talent pageants) to pass up.”
Seems Miss America has joined the ever-growing ranks of American heroes lurking in the kiddie chat rooms, catching sexual predators, and then publicly humiliating said predators on national television for our amusement. Lauren Nelson, the reigning Miss America, recently went undercover in a sting operation in which police created an online profile of her as a 14-year-old girl, complete with old photographs of her as a teenager. Said Miss America of her heroic efforts: “I got to chat online with the predators and made phone calls, too!”
Miss America’s brief stint as a crime fighter helped her to fulfill the policy “platform” –Internet safety for children – that she had offered, no doubt with tremendous enthusiasm, to pageant judges in convincing them to give her the crown. But Miss America surely went well beyond the call of duty, or the expectations of pageant officials, placing herself in the line of danger to catch these depraved men. According to an MSNBC report, Miss America arranged to meet the men at a home in Long Island. “I stood outside on the porch, and I would say, ‘Hi’ to them and wave them inside.” (No word on whether Miss America was wearing her crown at the time.) Once inside, the suspects were greeted by local police, “America’s Most Wanted” host John Walsh – and, of course, a hundred cameras recording their every move. “That part was very scary,” admitted an ever-perky Miss America, “but the police were all over the place. I was nervous, of course, but it was a very controlled environment, very safe.”
Indeed, rest assured, dear reader, that where Miss America’s safety was concerned, pageant officials were on the case. Art McMaster, president and CEO of the Miss America Organization, admitted that initially he was hesitant to allow Miss America to participate in the sting operation. But he agreed after talking with the producers of “America’s Most Wanted” – and, of course, after obtaining the consent of Miss America’s father.
Miss America reflected on her all-too-brief stint as an SVU cop with the following, appropriately cheerful verdict: “As many as we caught on that day, there are a lot more out there. It’s nice to know that they were chatting with police officers and me rather than a 14- or 15-year-old girl.”
posted by Dave Hoffman
[M]aybe the answer is not to demand that Hollywood elites cut their consumption, but simply to insist that they document their purchase of carbon off-sets before hectoring the rest of us?
As I’ve written before, I think that the hypocrisy claim is a weak argument against political innovation. I have particular doubts here: why should Gore’s ability to speak on matters of public concern be contingent on his living a carbon-neutral life?
One argument is that the rich will work to adopt distributively unfair standards: Al Gore’s lifestyle will not change no matter what the price of gas, and his preferences for a higher gas tax are therefore not to be taken seriously. This argument sounds quite a bit like that for reintroducing the draft, though the consequences of allowing Gore to speak seem significantly less exigent than sending troops off to war. It also sounds like a classic moral hazard argument: because Gore, and politicians, are “insured” against the full effects of their proposals, they behave (or try to persuade others to behave) in inefficient ways.
But political speech is not like political action, and it isn’t at all like consumption of goods. First, and most significantly, there is a long constitutional tradition holding that political speech should receive special protections for both deontological and utilitarian reasons. (I’m not saying that anyone thinks that Gore should be censored by the government for speaking. The point is merely to recognize that the “hush” impulse is directed at speech that is constitutionally important). Second, I have doubts that individuals’ political speech is particularly susceptible to relatively minor cost fluctuations. This is an empirical intuition, so I could be wrong, but I bet that if you made 10,000 environmental activists eat their words, so to speak, only a few would really change their speech to make it less personally costly. If that is true, there seems to be little reason to require a behavioral change to precede speech, just as it seems ultimately foolish to require politicians to be personally pro-life before taking pro-life positions in public, or low-tax activists to be personally charitable before suggesting that the government should get out of the redistribution business and leave it to private parties. Public arguments should stand on public merits, not those of their originators.
posted by Daniel Solove
Wikipedia’s advocates like to tout its dynamic nature: Volunteers can quickly respond to new developments and errors in the collaborative online encyclopedia by adding or changing entries themselves.
So it may seem odd that Wikipedia volunteers are now working on a static version on CD, a preliminary version of which was released earlier this month.
The goal is to extend Wikipedia to those with limited or no Internet access. Success with the CD could ultimately lead to Wikipedia in book or other forms. . . .
The development comes as the Pew Internet and American Life Project reports that 36 percent of U.S. adult Internet users have consulted Wikipedia — 8 percent on any given day. The telephone-based study issued Tuesday also found Wikipedia usage higher among college graduates and younger Internet users. . . .
Since its founding in 2001, the reference has grown to more than 1.7 million articles in the English language alone.
The Wikipedia CD will have only a subset of that — about 2,000 articles, with a heavy emphasis on geography, literature and other topics that won’t change much the way current events and controversial subjects might.
This development got me thinking of an idea that could help solve two of the biggest problems of Wikipedia: (1) since anybody can edit an entry, there’s often information of dubious reliability; and (2) entries frequently change as they are edited and updated, thus making any citation (gasp!) to Wikipedia even more problematic since the facts being cited to might no longer exist in the entry.
These problems are especially important because Wikipedia is being widely cited in scholarship and judicial opinions.
Wikipedia should create “approved” static versions of certain articles, which do not readily change and which are reviewed and approved by a professional editor or expert. In other words, Wikipedia could select special editors with expertise in certain areas, vet their credentials, and have them do a thorough edit of an entry. The entry would then be frozen as a special version. People could still edit and change the entry, but the special version would be readily available for those who wanted to rely on the entry for citation purposes.
Wikipedia already comes close to doing this. It has certain trusted editors and it does archive older versions of entries. But to make Wikipedia reliable enough to cite, some changes have to be made. A good system must be developed to ensure that trusted editors have the appropriate expertise — Wikipedia must avoid being conned by a charlatan. And it must be easy to find the expert-approved entry, which must be stable and free from modification after the expert reviewer has edited and approved it. With these changes, these special Wikipedia entries might be reliable enough to cite.
posted by Frank Pasquale
Today brings word that Toyota has finally displaced GM as the world leader in auto sales. To celebrate this doesn’t come naturally for me; my father was a displaced steel worker who insisted on buying American cars as long as he lived. But a brief review of the corporate record of the two entities leads me to hope the eclipse of GM will warn other companies that they need to reckon with the “Green Imperative.”
It’s often said that when emissions standards were introduced, Toyota hired a 1000 engineers to meet them, and GM hired a 1000 lawyers to fight them. I’m not saying engineers are necessarily more useful than lawyers–think of the yeomen’s labor of those who had to fight GM in court! Their sad plight is chronicled in Keith Bradsher’s High and Mighty: The Dangerous Rise of the SUV. Consider this interaction between GM and the EPA (296):
[To fight recognition of Kyoto Protocol-inspired standards], GM hired a law firm that prepared a 4-inch thick document for the EPA on why the rules were too stringent, laying the groundwork for a legal challenge. But Ford cut the ground out from under GM’s arguments by saying that it had no objection to the new rules….
GM decided not to sue the federal government to block the new rules….[But while] Ford had voluntarily and deeply reduced air pollution from its entire lineup of light trucks[,] GM had not even bothered to match Ford’s example.
…and they certainly haven’t matched the Prius. Rather, GM (and, sad to say, the UAW and some other domestic manufacturers) have furiously lobbied to weaken already lax fuel economy standards.