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Bye All!

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 Steph_Tai at 11:02 PM | Comments (2) | TrackBack

Adios!

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 Kim_Ferzan at 05:13 PM | Comments (4) | TrackBack

The Death of Fact-finding and the Birth of Truth

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.

First, if we take seriously the idea that experience in evaluating evidence brings skill, then appellate judges are likely to be worse at evaluating video evidence than trial judges. Certainly, there is no reason to think they are better. So, imagine a world in which the police routinely videotaped their searches and seizures of homes, and all resulting conversations with suspects. (It isn’t too hard to imagine.) Trial courts would make rulings on the admissibility of evidence based on that videotape, supplemented, perhaps, by testimony from the police and accused. Assuming that such videos would be put into the record, what kind of deference should an appellate court give a trial court on such judgments after this opinion? Current practice accords the trial judge deference because she is “in the room,” and “smells the same air” as the testifying parties. But that approach would seem to be significantly undermined by the Court’s formalation of the purpose of litigation: to determine what “actually happened.” The Scott rule starts to make trial courts into something like magistrates: useful for moving paper and effecting settlement, but ultimately not decision makers.

Second, Scalia's opinion demonstrates its weakness by telling the reader to make their own independent evaluation of the video evidence. Opinions should stand on their own feet. In world where all opinions were freely available online to all citizens, complete with video embedding, we might not care. That world, of course, is coming, but only for those who can afford computers and broadband connections. This characterizes almost every reader of this blog, but only a minority of the rest of the population. To take only a small example, consider prisoners in the state jail. Prisons strictly control internet access, and time, on the theory that the law in the books is an adequate substitute for constitutional purposes. If most courts begin throwing questions from the page to the tape, will prisoners gain a constitutional right to computer access?

But this project is misguided anyway. The majority as much as turns its back on the courts’ ordinary role to determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. The court’s opinion has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

(H/T: Orin Kerr; More commentary at SCOTUSBlog, which notes that "this decision is a constitutional holding more than it is an essay about facts, and very likely will be applied by lower courts beyond its specific factual setting."; Marty Lederman has charactistically great comments here.)

(Photo: Garrison Photography, courtesy of SXC.)

Posted by hoffman at 01:41 PM | Comments (22) | TrackBack

Inconceivable!

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.

Coincidence? Inconceivable!

(Photo Credit:Mark Robinson )

Posted by hoffman at 11:47 AM | Comments (3) | TrackBack

Signing off

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 Alice_Ristroph at 11:43 AM | Comments (3) | TrackBack

Self-Handicapping and Managers' Duty of Care

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 . . .

The piece grew out of a post I wrote here over a year ago, and will appear in the Wake Forest Law Review's Business Law Symposium Issue.

Posted by hoffman at 11:28 AM | Comments (0) | TrackBack

Libertarians Against Subjectivism

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 at 08:59 AM | Comments (5) | TrackBack

"Self-Pay" Luxury Jails

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 at 02:57 PM | Comments (19) | TrackBack

The Value of Pets

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 Frank_Pasquale at 04:43 PM | Comments (15) | TrackBack

Scholar-ly Symposium

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.

The competition is limited to junior scholars -- law students and those who have graduated within the past five years. For more information, see this announcement file, or the Pennumbra website.

Posted by Kaimipono at 11:28 PM | Comments (0) | TrackBack

De Novo on Xoxohth

PG at De Novo has written a terrific post that you should read if you are still interested in the Xoxohth board.

(A caution while indulging. It seems that the increased attention paid to the Board, and associated cascades of rumor, is exacerbating its ugly side. Odd. Doesn't sunlight usually cleanse?)

h/t: Belle Lettre

Posted by hoffman at 11:25 PM | Comments (0) | TrackBack

Illegals

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?

This argument is not unreasonable on the surface. It is strongest if we accord similar treatment to other groups. That is, the reasonableness of this approach depends on whether we typically make one's violation of law a primary or sole descriptor.

For example, if the principle is to be applied consistently, Kenneth Lay should be described as "an illegal" because of his conviction for a crime. Scooter Libby should similarly be called "an illegal." In fact, one might expect proponents of the usage of illegals (in the context of immigration) to support this broader usage as well. After all, they seem quite concerned that a person's status vis-a-vis law be used as that person's primary or only descriptor.

The potential application of the "illegals" label is even broader, really. Immigration critics don't confine their use to people actually convicted of crimes. Anyone who violates immigration laws -- whether convicted or not -- is subject to the term. For consistency's sake, the same should apply to people who violate any other laws.

So both Kenneth Lay (convicted) and other unconvicted violators of corporate law should be called illegals. Let's apply the term, consistently, to anyone who has ever violated a law. Anyone who has violated a law at any point -- speeders, jaywalkers, late tax filers -- should henceforth be called "an illegal." Under this definition, I'm an illegal, and you probably are, too. (The term probably covers most Americans.)

Meanwhile, those who haven't ever broken any law should be rewarded by being called "legals" in general parlance. Let's raise compliance with law above race, religion, gender, or age, as one's primary identifying attribute. I'm sure that Dobbs and other proponents of the "illegals" usage will be happy to extend it to its logical limit -- why wouldn't they?

I have only one other question, though -- what exactly should we call the inconsistent folk who support the apparently racist approach of labeling immigration violators as "illegals," but see no need to use that label on any violators of other laws?

Hmm.

I suggest we call such people, "bastards."

Posted by Kaimipono at 09:31 PM | Comments (9) | TrackBack

The evils of immigration

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 Kaimipono at 07:22 PM | Comments (2) | TrackBack

Kitty Genovese, Writ Small

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 hoffman at 04:19 PM | Comments (2) | TrackBack

Is MySpace Exploiting You?

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?

As a skeptic of IP expansionism, I am wary of the exploitation idea if only because it threatens to instill in more and more people a "right to be paid" for what they contribute to the social networking behemoth (and to reconcile them to paying for anything else they see and do online...a sort of compensational theodicy for perfect control & metering of their online activities). I envision some dystopic anticommons of people all demanding to be paid for their contribution. Moreover, as Trebor has pointed out, it's more likely than not that the context-providers have the upper hand bargaining here.

But I do think that people who contribute to these sites do deserve a right to know how they are governed, and to contribute to that governance. We should be prepared to challenge "black boxes," and not to simply accept site founders' claims that they need to keep us in the dark about how they're run because that's the trade secret they need to keep ahead of competitors (and to be incentivized to improve their sites).

We need to question the claim that sites are successful because of their great innovation; rather, their innovation may well be deemed to be great only because the site is successful. It's like Thomas Schelling's old parable about two restaurants that are empty at 6PM; one person randomly chooses one of them, and then all succeeding customers go to that one, because they want to choose the restaurant that is "popular." The origins of the popularity never get interrogated. Except, in the search engine and social networking context, we get to hear many post hoc explanations for why the owners of the successful sites are so much smarter than their vanquished competitors. Hagiographers in the business press have many incentives to rationalize the existing order.

The classic libertarian response, that "you can go to another site," does not cut it, because of these network effects. By and large, you can't just start your own site and expect to have anything like the competitive advantage you gain from playing on the platforms of established players.

The best alternative is to have new, public and transparent search engines and social media sites, perhaps with some government funding for basic research and infrastructure. (If only the U.S. government had required digital deposit of books for copyright, we wouldn't so desperately need a Google Library.) And, failing that, let's have a lot more transparency from the major players, regardless of claims that that will take away the trade secrets that made them great.

PS: Susan Crawford has a great post on the whole panel that included Trebor's talk.

Photo Credit: Flickr/LeeOfBorg.

Posted by Frank_Pasquale at 11:11 AM | Comments (2) | TrackBack

This just in from the Department of Unintended Irony

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?

I found it on CNN.com.

Posted by Kaimipono at 05:04 PM | Comments (4) | TrackBack

Miss America Joining America’s Most Wanted

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 Melissa_Waters at 04:29 PM | Comments (7) | TrackBack

Hypocrisy and Carbon Policy

Steve Bainbridge, writing about whether former VP Gore should take the so-called Gore Pledge, concludes:

[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 hoffman at 11:06 AM | Comments (6) | TrackBack

A Static and Authoritative Wikipedia

Wikipedia, the collaborative online encyclopedia, is coming out in a static version on CD. According to the AP:

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.

The solution?

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 Daniel Solove at 12:08 AM | Comments (6) | TrackBack

Don't Cry for G, Buy Toyota

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.

As Dan Filler might say, sometimes regulation can help the regulated. If GM had the "ecomagination" of a GE, perhaps it would still have the market position it lost today.

Posted by Frank_Pasquale at 02:26 PM | Comments (0) | TrackBack

More on Exams

Here is another sticky exam question:

Should a professor deduct points for "wrong" answers?

Let me defend the "yes" argument. First, the ability to issue spot, is the ability to issue spot. If a student takes the "throw everything against the wall to see what sticks" approach, then they don't really understand the material.
(Now, that said, I won't deduct points if the student raises a potential issue/line of analysis and ultimately concludes that it is inapplicable.) But the truly irrelevant, I believe, shows a lack of understanding. I also think that profoundly faulty analysis deserves deductions as well. If the student's analysis shows that he/she doesn't understand the law, I deduct points for it.

(Now, before my crim 1Ls start to panic, this doesn't mean that every single misstep is a deduction, but I do believe that there is a difference between a student who gives a mediocre analysis and a student who gives a mediocre analysis and then throws in irrelevant junk. The first student simply understands the course better.)

I know everyone doesn't share this view. Counterarguments?

Posted by Kim_Ferzan at 12:48 PM | Comments (10) | TrackBack

Announcing the Law Review Forum Project

I am very pleased to announce a new project here at Concurring Opinions – the Law Review Forum Project. We will be hosting online forums for several law reviews. Increasingly, law reviews are creating online forums as companions to their regular law review issues. These forums contain very short response pieces, essays, debates, and other works that attempt to bridge the gap between regular legal scholarship and the blogosphere.

Journals seeking to create their own online forum face two daunting challenges. First, they must create and actively maintain a web presence. Second, they must find ways to attract readers, which is difficult in an age where so many blogs and other websites exist. A wide readership for a website depends upon having daily content. Law review forums produce content sporadically throughout the year at intervals that are not regular enough to attract a significant readership.

Therefore, we have invited a number of law reviews to participate in a partnership with our blog. Throughout the year, each law review will periodically post forum essays here at Concurring Opinions. We are not requiring an exclusive license, so participating law reviews can also cross-post at their own websites.

We see this as a mutually-beneficial arrangement. We can bring great content to our blog, and law reviews can reach our significant audience without the pressures of having to build and maintain an online readership or of having to produce content with regularity.

Law reviews currently with and without existing forums will be participating. Thus far, the following law reviews have agreed to participate:

* Harvard Law Review
* Virginia Law Review
* Michigan Law Review
* University of Pennsylvania Law Review
* Northwestern Law Review
* UCLA Law Review
* George Washington Law Review

In the near future, we hope to be expanding the list of participating law reviews.

Posted by Daniel Solove at 01:04 AM | Comments (4) | TrackBack

Is a Good Exam Broad or Deep?

It should be obvious that writing exams is much more pleasant than grading them. Still, nagging questions dog the enterprise, making it difficult to get the job done. The hardest, for me, is whether to test broadly (i.e., a fair sample of every issue the course covers) or deeply (a few issues, with lots of factual nuance and policy twists). The problem is that I think that students and teachers have different preferences. Should I trump students' preferences, work to debias them, or satisfy them?

Maybe this problem is all theory, and no evidence. Let's take a poll, to get some "data" on point.

The Perfect Exam Is...
	Very Broad. [I am an exam-writer.]
	Hits only a small percentage of the course, but crushes it. [I am an exam-writer.]
	Very Broad. [I am or was a student]
	Hits only a small percentage of the course, but crushes it. [I am or was a student.]
	Exams are generally bad: papers are better.
Free polls from Pollhost.com

Posted by hoffman at 04:12 PM | Comments (11) | TrackBack

Unnaturally Made Killers

After a week of media coverage of the Virginia Tech tragedy, we can compare how different outlets have shaped our view of events there. Megan McCardle notes:

I haven't found a single editorial addressing one factor we know creates these mass murders: reporting on the mass murders. In the next few weeks and months, even over the next few years, expect to see copycat killings inspired by Cho's actions. The more saturated the media coverage, the more such events we are likely to get.

Of course, it's impossible to fully assess causation here, an issue that has vexed media reformers for decades. But Thomas de Zengotita has weighed in on how deeply mediated this killer's self-conception was, and how the whole event quickly became polarized between different "scripts," or ways of making sense of a terrible reality. Many criticize the media for airing so much of the shooter's "media kit," for complicity in fulfilling (if posthumously) a disturbed soul's demand for the world's attention.

Some respond that competitive pressures made the decision by NBC to share the materials inevitable. The Canadian Broadcasting Company decided not to air the Cho videos....but they are under less ratings pressure than American broadcasters, and at the time it aired the tapes, NBC was losing share to ABC.

Is there a role for law to deter an arms race of sensationalism? Fred Yen has mentioned a possible copyright issue here, but it's hard to imagine the shooter's family being capable of putting such a suit at the top of its concerns....especially immediately in the aftermath of the murders.

Could a ban on broadcast of such materials work? Perhaps, but I imagine would-be celebrity killers would simply upload their rants into the BitTorrent and YouTube ether. Blogs would quickly jump on disseminating it, eager for the fame & links that it could bring.

So despite my occasional dirigisme, I can't see a role for law here. The public's insatiable appetite for sensationalism, and predictably ensuing frenzies for renown, appear to be a durable aspect of a decentralized and link-driven web. Technology + Competition > Values.

Posted by Frank_Pasquale at 02:37 PM | Comments (8) | TrackBack

Docketology

As I previously have discussed here and here, I've been working on a project examining when trial courts write opinions. With the help of statistician co-authors, I have investigated trial court dockets, trying to account for various factors that might lead a contested matter to either be explained through a traditional written opinion or issued in a brief order. Our resulting draft, "Docketology, District Courts, and Doctrine", is now available from SSRN or from Selected Works. Here is an abstract:

Empirical legal scholars have traditionally modeled judicial opinion writing by assuming that judges act rationally, seeking to maximize their influence by writing opinions in politically important cases. Support for this hypothesis has reviewed published opinions, finding that civil rights and other “hot” topics are more to be discussed than other issues. This orthodoxy comforts consumers of legal opinions, because it suggests that opinions are largely representative of judicial work.

The orthodoxy is substantively and methodologically flawed. This paper starts by assuming that judges are generally risk averse with respect to reversal, and that they provide opinions when they believe that their work will be reviewed by a higher court. Judges can control risk, and maximize leisure, by writing in cases that they believe will be appealed. We test these intuitions with a new methodology, which we call docketology. We have collected data from 1000 cases in 4 different jurisdictions. We recorded information about every judicial action over each case's life.

Using a hierarchical linear model, our statistical analysis rejects the conventional orthodoxy: judges do not write opinions to curry favor with the public or with powerful audiences, nor do they write more when they are younger, seeking to advance their careers. Instead, judges write more opinions at procedural moments (like summary judgment) when appeal is likely and less opinions at procedural moments (like discovery) when it is not. Judges also write more in cases that are later appealed. This suggests that the dataset of opinions from the trial courts is significantly warped by procedure and risk aversion: we can not look at opinions to capture what the “Law” is.

These results have unsettling implications for the growing empirical literature that uses opinions to describe judicial behavior. It also challenges the meaning of doctrine, as we show that the vast majority of judicial work – almost 90% of substantive orders, and 97% of all judicial actions – are not fully reasoned, and are read only by the parties. Those rare orders that are explained by opinions are, at best, unrepresentative. At worst, they are true black sheep – representing moments and issues where the court is most obviously rejecting traditional patterns and analyses.

I am very interested in receiving comments on this paper, particularly before the late summer, when we plan to submit it to the law reviews!

[Nit-seekers beware: there is one typo in the SSRN abstract. (Don't go find it, just trust me, it is there.) For what it is worth, I basically agree with Kevin Heller that SSRN should give users more control over author-submitted papers to make revision easier. ]

Posted by hoffman at 11:01 AM | Comments (6) | TrackBack

A song for Brian Leiter.

Sing it!:

Who lives in a pineapple under the sea?
Brian Leiter.
Progressive, prolific, and Texan is he,
Brian Leiter.
If rankings on law schools be something you wish
Brian Leiter.
Then send him a link, and flop like a fish
Brian Leiter.

Brian Leiter.
Brian Leiter.
Bri - an Lei - ter.

Posted by Kaimipono at 01:09 AM | Comments (8) | TrackBack

Froomkin's conjecture on the inverse relationship between happiness and self-promotion

From Discourse.Net:

Over a year ago, I stopped promoting this blog by sending out emails when I thought I had something worthy of attention. Traffic and links soon sagged — I lost maybe a third of it. But I’m much happier.

Hmm -- not a bad theory . . . Okay, now I'm going to go e-mail this link to everyone that I know.

Posted by Kaimipono at 01:06 AM | Comments (0) | TrackBack

Raising cash through detailed explanations of past financial foolishness

Suppose you're an entrepreneur, trying to find new investors for a new dot-com project. What do you do to build interest and confidence?

I've got an idea! Why don't you give interviews for a lengthy NYTimes piece that explains how you managed to lose $200 million of your own fortune in just a few years, because you didn't bother to learn simple financial concepts. And then, at the end of the article, note that you're hoping to raise some money from investors for your newest project.

"Here's how I lost $200 million of my own through negligent management . . . would you like to give me some of your money?" It's really hard to imagine a more effective sales pitch than that, isn't it?

Posted by Kaimipono at 12:53 AM | Comments (0) | TrackBack

Jumping the Queue

The D.C. Circuit recently heard, en banc, the panel decision in Abigail Alliance, which tried to establish a constitutional right of terminally ill patients to access drugs that had passed Phase I clinical trials. Glenn Cohen gives a nice summary of the case and the issues it raises here. Both Eugene Volokh and John Robertson have examined how the decision could push regulations governing organ transplantation, stem cell research, and even medical marijuana in a far more libertarian direction. Even though many commentators doubt the controversial decision will stand, its resonance with a recent Supreme Court of Canada case makes me think its principles may influence American law in future cases.

In Chaouilli, the Canadian Supreme Court articulated a substantive right to pay for private health care, despite Quebec's insistence that certain forms of private payment would divert resources from and thereby undermine its one-tier Medicare system. As Colleen Flood has documented, it is a deeply flawed decision, relying on questionable generalizations about the Canadian health care system and health policy generally. But the opinion rests on a visceral reaction that is hard to refute: when one's life is at stake, taking virtually any measure that does not harm others seems appropriate.

So what's the "harm to others" at stake in Abigail Alliance? Perhaps an "outsourcing of risk" from the wealthy to the poor. What will likely happen if anyone able to afford the “real thing” opts out of Phase II clinical trials? We already know that "Low-income individuals are more likely to sign up for [toxicity-detecting] Phase I medical trials and enroll in trials multiple times." If Abigail Alliance stands, then anyone with enough money could opt out of Phase II trials (and the possible risk of being assigned to the control or comparator group). It presents one more way of tiering the medical system, and while that concern may not be enough to trump terminally ill patients' right to treatments of choice, it certainly recommends some taxing of that tiering to redirect resources to groups hurt by it.

Is a similar harm at stake if Chaoulli is applied to all Canada? Tough question. To the extent that there is a relatively fixed amount of health services in Canada, the diversionary effect will be strong. If private health insurance manages not merely to fund more demand, but to induce more supply, we won't have to worry so much. It is a difficult empirical question...but certainly the tiering of the U.S. health care system provides a cautionary tale.

PS: Apropos the last post, kudos to the Washington Legal Foundation for challenging Medicare's refusal to reimburse some "off-label" cancer drugs.

Photo Credit: Flickr/PJS.

Posted by Frank_Pasquale at 02:37 PM | Comments (1) | TrackBack