Archive for May, 2007
Politics, Private Space, and Total Persuasion
posted by Dave Hoffman
A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government’s defunct secret possibly ongoing program to gather reams of information about its citizens and corporations’ desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we’re rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.
These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today’s Journal, John McKinnon has a interesting article about Sara Taylor’s decision to leave her job as the White House’s political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was “honed” by political operations to “more effectively zero in on voters’ emotion triggers,” and uncover groups of voters that are susceptible to future efforts. Taylor sees a “big future” for taking such political lessons back to the corporate world by “helping corporations focus on potential customers’ . . . feelings about buying a product or service.”
There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are “more constrained in the claims they can make” than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating “social networks around products and brands . . .” In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.
Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)
What’s wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn’t savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn’t it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.
But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven’t fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others’ (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.
May 21, 2007 at 8:50 pm
Posted in: Advertising, Behavioral Law and Economics, Consumer Protection Law, Contract Law & Beyond, Culture, Economic Analysis of Law, Law and Psychology, Politics
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The Future of the Supreme Court
posted by Daniel Solove
Over at SCOTUS Blog, Tom Goldstein wonders what would happen to the Supreme Court if a Republican were to win the presidency in 2008:
As a consequence, whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted. . . .
In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.
Orin Kerr replies:
I look at things differently, and a thought experiment explains why. Imagine the year is 1969, the end of a decade of 5-4 constitutional blockbusters, and Chief Justice Warren has recently announced his retirement. A time-traveler from 2007 comes back and tells you the dramatic news about who would nominate the Justices of the next four decades. He explains to you that American politics would shift sharply to the right in the future, and that that in the next four decades 12 of the 14 new Justices — over 85% — would be nominated by Republicans.
Orin is right that predicting the future of the Supreme Court based on elections is fraught with peril. Yet there is a fundamental difference between today and 1969 that makes Orin’s hypothetical not very apt. Today, the appointments process is much different — is is far more partisan. Partly because Republican presidents appointed justices who turned out to be liberal, there has been a backlash that has resulted in far more vetting of candidates. Is it possible for more Souters or Blackmuns to slip through a Republican administration? Certainly, anything is possible. But I doubt that it is likely. The lessons of the past will weigh heavily on every president, whether Republican or Democrat. With the Court hanging in the balance, I bet most presidential administrations will carefully vet their nominees.
The days where Supreme Court nominees turn out to be ideological surprises are largely gone. This is due, in part, to the widespread acceptance of the legal realist notion that justices are not neutral interpreters of the law; to the increasing involvement throughout the twentieth century of the Court in the political and social issues of the day; to the increasingly bitter confirmation battles that now have become a hollow ritual of empty rhetoric; and to the lessons of history that nominees not thoroughly vetted can turn into longstanding sources of regret. I wish we could go back to the more innocent age of 1969, but I doubt that we can recover such lost innocence.
The only transformation I see capable of changing the appointments process is a major realignment in political thought. For example, during the New Deal, it was the liberals who were calling for judicial restraint. It took a while before attitudes realigned, with conservative justices (such as Felix Frankfurter) continuing to advocate for judicial restraint while the liberal justices pressed for Warren Court expansion of rights. We’re still living in this paradigm, and until it shifts, we won’t be seeing any more surprise justices.
Therefore, I agree with Tom Goldstein that the next election is pivotal for the Supreme Court.
May 21, 2007 at 8:25 pm
Posted in: Supreme Court
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Law Podcasts
posted by Frank Pasquale
If law reviews and blogs just aren’t enough for you (or if your eyes readily tire), try some law podcasts! Here are a few I’ve enjoyed recently:
–Margot Adler, Justice Talking. I’ve been impressed by the experts she gets and her tough follow-up questions during interviews. The show on presidential primaries has some fascinating legal angles on the process–did you know that the national parties are planning to severely penalize any candidate who campaigns in certain states before certain deadlines (by cutting those states’ delegations)?
–David Levine, Hearsay Culture. This one focuses on law & technology. Too busy to read Cass Sunstein’s Infotopia? Listen here! Richard Epstein is also an engaging guest. Sadly, you have to listen live to hear Levine’s ingenious music selections, such as “If You Love Somebody Set Them Free” for Epstein.
To find these, type something like “hearsay culture” or “margot adler” in the search box in the iTunes store.
Any other podcast suggestions from readers?
May 21, 2007 at 3:54 pm
Posted in: Culture, Legal Theory
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Copyright Expansionism’s Colmes
posted by Frank Pasquale
The blawgosphere is abuzz over Mark Helprin’s sally into the copyright culture war, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” The trouble with the piece starts with its title, since copyright protects expression, not ideas. . . . and it goes downhill from there, as Ilya Somin and James Grimmelmann expertly show. To add my 2 cents: Helprin’s essay focuses on artistic works, ignoring the wide range of ways copyright ends up influencing software, architecture, consumer product design, and the transmission of information generally.
But I’d like to focus on one aspect of Helprin’s rhetoric: the blurring of the difference between IP and real property. Here’s the crux of Helprin’s argument:
Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. . . . they are not simply expropriated. That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren.
Helprin is attempting to expand the frontiers of a burgeoning property rights movement in the U.S. But as Peter Menell has demonstrated, deep
[P]hilosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring
relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.
Here are a few of the differences Menell focuses on, in the course of critiquing Richard Epstein’s effort to parachute property rights rhetoric into IP debates:
Exclusivity in the realm of real property addresses the “tragedy of the commons.” Providing exclusive rights to land and other tangible resources limits the overuse of inherently depletable resources. By contrast, intellectual resources (knowledge) are not depletable and hence are not subject to overuse externalities.
[S]everal libertarian theorists see scarcity, and not the act of creation, as the fundamental justification for property rights. They view the recognition of property-type rights in intellectual creativity as inhibiting the freedom of others to use tangible resources and to engage in free expression.
As Menell concludes, “the Property Rights Movement is too limited and grounded in absolutist ideology to support the needs of a dynamic, resource-sensitive intellectual property system.” Can we even imagine what it would be like for Richard Loncraine to negotiate deals with the fractionated interests of descendants of the Shakespeare estate in order to do Richard III? Or to think that one errant heir of, say, dozens, could veto the production?
Perhaps Helprin is just trying to push the debate on the expansion of copyright terms toward longer protection by advancing a outlandishly uncompromising position. But given the absurdity of his argument, perhaps he’s more like copyright expansionism’s Colmes (of Hannity & Colmes); a token voice given a forum merely to humiliate his ostensible allies, or to put their case in the most unconvincing way possible.
May 21, 2007 at 1:41 pm
Posted in: Intellectual Property
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Fantasy’s Apocalyptic Turn
posted by Dave Hoffman
[To our regular readers. This post falls largely in "the Universe, and Everything” aspect of Concurring Opinions' topic mix. It is going on summer, and I thought that you might enjoy a review of some fiction in case you get to the beach. Plus, I’m tired of packing]
Hi, my name is Dave, and I read epic fantasy books. In my defense, other other corporate law professors do it too. But it is still sort of hard to be a public fan of a genre that produces badly written tripe on a regular basis, serialized over multiple volumes in an apparent attempt to squeeze every last cent out of the fan base, recycling old themes over the course of many new “worlds”, which is sometimes just plain embarrassing to buy in a store. It’s no help that the “literary” writers in the genre are pretentious and extremely difficult to read. If I wanted dialog without attribution, I’d read A Frolic of His Own. At least it is about law.
Still, I consume a fair bit of this stuff over the course of the year. And I’ve noticed that authors in recent years have taken a real turn for the darker shades of grey. On the whole, this is a good thing. Adult themes mean better writing, which legitimizes my reading. George R. R. Martin’s Song of Ice and Fire series is the best and most popular example of the trend. Martin’s method is to drive the story forward through the eyes of multiple protagonists. The novelty (for fantasy, that is) is that he regularly kills off these starring characters. There is pretty graphic sex and violence. He also refuses to make any character totally good or totally evil; almost every member of the cast is tarnished. The magic in the series is mostly an afterthought to character development and politics.
May 19, 2007 at 9:49 pm
Posted in: Uncategorized
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The Mommy Wars and Breast Milk
posted by Solangel Maldonado
Last month, we saw the revival of the “Mommy Wars” once again. Triggered by the publication of Leslie Bennetts’ book, The Feminine Mistake, major newspapers, magazines, and blogs debated Bennetts’ premise that mothers who leave the workplace to raise children, even temporarily, risk significant economic losses in the future. As commentators debated the pros and cons of women’s life choices, and the effects on their children, there was little discussion of an issue that may have a much greater impact on children—outsourcing of breast milk. Yes, you read it right the first time. Although women have always breastfed other women’s children, as Time magazine recently reported, only now is there a clear for-profit market in human breast milk in the United States.
Studies have shown that breast-fed babies enjoy numerous health benefits which infant formula simply cannot replicate. Clearly, breast milk is best but the question is “whose breast milk?” An infant might benefit most from his own mother’s milk, but there is evidence that another woman’s breast milk is preferable to infant formula. Some mothers are physically unable to provide their children with their own breast milk, while others choose not to because, according to Time, they have “high powered careers.” If the market for human breast milk continues to grow, this latter group (although small) might find itself in the center of the Mommy Wars.
Women who purchase human breast milk are generally wealthier than the women they employ to nurse their children. Although at a salary of $1,000 per week, wet nurses earn more than most nannies, and demand for their services is increasing, some people are uncomfortable with the class and racial implications of this line of work. Let’s not forget that during slavery, Black women often nursed their masters’ children.
May 18, 2007 at 11:28 pm
Posted in: Family Law, Feminism and Gender
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Exporting Law School (Italian Edition)
posted by Dave Hoffman
In a little under two weeks, I’ll be traveling to Italy to participate in Temple Law School’s Summer Session in Rome. It’s a real hardship, this job.
Because of the trip preparations, and a crashed computer, blogging has been light of late for me and will continue to be so for a while. (Though I’m preparing one big post before I go.) So, I thought I’d open an open thread. Here are some topics to spark discussion.
First, if anyone has recommendations for really exceptional meals in Rome, Florence, Sorento, and Naples, please share them. Yes, I know the food is good everywhere. I’m talking 10-ten-best-meals-of-your-life good.
Second, what is the Moneylaw perspective on the proliferation of summer programs run by domestic law schools? Such programs often seem to me to fill an important pedagogical mission – at least in design – because American legal education remains quite parochial. But Jeff Harrison blasted such programs in his 2006 Turkey Awards. What role should summer sessions best serve?
May 18, 2007 at 7:34 pm
Posted in: Law School (Teaching)
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Redistribution as/and Recognition
posted by Frank Pasquale
In a methodologically interesting essay, Harvey Mansfield makes a silly substantive argument:
You can tell who is in charge of a society by noticing who is allowed to get angry and for what cause, rather than by trying to gauge how much each group gets. Blacks and women wanted benefits only as a sign of equality, not to give themselves greater purchasing power.
I’m much more partial to my colleague Shavar Jeffries’ point that “black people need radical substantive change in their quality of life;” symbolic politics means little in the face of inequalities that greatly reduce individuals’ chances at health care, education, and safe and affordable housing.
This is perhaps why Nancy Fraser worries that “insofar as the politics of recognition displaces the politics of redistribution, it may actually promote economic inequality; insofar as it reifies group identities, it risks sanctioning violations of human rights and freezing the very antagonisms it purports to mediate.” But unlike Walter Benn Michaels and Mansfield, Fraser believes “struggles for recognition can [legitimately] aid the redistribution of power and wealth.” Her books, including Unruly Practices, give some fascinating examples of how that can happen. If you’re tired of reading, check out Deepa Mehta’s film Water.
So why did I think the Mansfield essay methodologically interesting?
May 17, 2007 at 1:51 pm
Posted in: Civil Rights, Culture, Economic Analysis of Law, Law and Humanities, Legal Theory, Philosophy of Social Science
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Anything New Under the Sun?
posted by Frank Pasquale
Jonathan Lethem’s justly celebrated Harper’s article on the pervasiveness of plagiarism is featured in the WaPo:
After 10 pages of carefully constructed argument against “those who view the culture as a market in which everything of value should be owned by someone or other,” Lethem reveals that just about every line in his piece is something he “stole, warped, and cobbled together” from the work of others. He then annotates his borrowings, reporting, for example, that the “culture as a market” quote derives from “The Tyranny of Copyright?,” by Robert Boynton, in the New York Times Magazine.
The idea of making a case for originality based on copying appears charmingly novel. But after twice being asked by law review editors to provide a citation for the thesis statement of an article (can the article cite itself?), I’m beginning to think that perhaps even Lethem’s idea is not all that unprecedented. We lawyers are forced to disclaim our originality all the time. . . . even in a medium like the article, where novelty is supposed to be a sine qua non. I have to wonder what other writings would look like if all the borrowing had to be as transparent (or were as valued) as ours.
Here’s one more celebration of Lethem’s essay:
It’s a passionate salvo in the copyright wars, a crowd of voices coralled together to say, basically: without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling — without influences great and small, in other words — there is no “creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.
Woof! [approvingly]
May 17, 2007 at 10:29 am
Posted in: Intellectual Property
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Judge Struggles to Grasp Newfangled Idea Called “The Internet.”
posted by Kaimipono D. Wenger
It’s a story worthy of The Onion — the scary part is that apparently, it’s for real. From MSNBC:
LONDON – A British judge admitted on Wednesday he was struggling to cope with basic terms like “Web site” in the trial of three men accused of inciting terrorism via the Internet. Judge Peter Openshaw broke into the questioning of a witness about a Web forum used by alleged Islamist radicals.
“The trouble is I don’t understand the language. I don’t really understand what a Web site is,” he told a London court during the trial of three men charged under anti-terrorism laws. Prosecutor Mark Ellison briefly set aside his questioning to explain the terms “Web site” and “forum.” An exchange followed in which the 59-year-old judge acknowledged: “I haven’t quite grasped the concepts.”
I’ll bet he doesn’t read Concurring Opinions, either.
May 16, 2007 at 8:13 pm
Posted in: Weird
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Argument & Authority
posted by Frank Pasquale
One part of the intro to Kennedy & Fisher’s Canon of American Legal Thought really hit me today:
Law students struggle to understand the relationship between “the rules” and the vague arguments that lawyers call “policy.” Should “policy” begin only in the exception—when legal deduction runs out—or should it be a routine part of legal analysis? If the latter, how should lawyers reason about policy? What should go into reasoning about “policy”—how much ethics, how much empiricism, how much economics? Which of the arguments laypeople use count as professionally acceptable arguments of “policy” and which do not? Which mark one as naïve, an outsider to the professional consensus? What is it about policy argument that makes it seem more professional, more analytical, more persuasive, than talking about “mere politics”?
I think I might begin my administrative law class next term with those questions at the forefront. Administrative Law is occasionally derided as a Seinfeld class–a class about nothing–because the precedents seem so malleable and ad hoc. All seems to turn on an increasingly complicated jurisprudence of deference. But the agencies are often getting deference because they are presumed to have a better grasp on “empiricism and economics” than nonspecialist judges.
The problems raised by K&F go beyond law into flelds like economics itself. Consider EconJournalWatch’s recent issue examining the role of math in top-level publications. Sutter & Pejsky ask “Where Would Adam Smith Publish Today?,” and note a “near absence of math-free research in top journals.” A bit from their conclusion:
The emphasis on mathematical modeling and regression analysis imposes a toll on the profession. Adam Smith spent his early years studying literature, history, ethics, political and moral philosophy, and then teaching literature and rhetoric to college students. Today to succeed in the profession he would need to study model building and regression analysis well enough to publish in “good” journals, and he (and the rest of us) would have lost the value added from the studies displaced. The same would apply for many Nobel prize winners who published their work in an economics profession less tied down to model building and regression analysis.
Sutter & Pejsky, along with many other interesting authors in EJW, are arguing for a more pluralistic approach to economic authority. I hope to show my students in Admin the multiple sources of authority for agency decisions…and how that complexity, while occasionally frustrating and obfuscatory, can make the resulting decisions stronger, like a Peirce’s cable.
May 16, 2007 at 5:33 pm
Posted in: Administrative Law, Articles and Books, Economic Analysis of Law, Empirical Analysis of Law, Law School (Teaching), Law and Humanities, Philosophy of Social Science
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Reagan on O’Connor’s Nomination
posted by Dave Hoffman
Vanity Fair has excerpts of President Reagan’s diaries. This entry, from July 6, 1981, is pretty neat:
Mon. July 6 • Nancy’s birthday. Called Judge O’Connor in Ariz. & told her she was my nominee for Supreme Ct. Already the flack is starting & from my own supporters. Rite to Life people say she’s pro-abortion. She declares abortion is personally repugnant to her. I think she’ll make a good Justice.
Does this mean that Reagan didn’t ask O’Connor about her judicial views about abortion (or know them) before nominating her?
[Update: Wow, I'm late to the party on this. See, e.g., Jack Balkin two weeks ago!]
May 16, 2007 at 11:29 am
Posted in: Constitutional Law
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Medicare Part Z: Every Man a Lawyer
posted by Frank Pasquale
A lot of health law experts are puzzled by the Bush Administration’s decision to subsidize private Medicare plans. They don’t appear to be saving the government much money, as they have “much higher administrative costs than government-managed Medicare.” But perhaps they’re really about sharpening the skill set of the elderly–particularly their advocacy and accounting skills. Consider this example from a report by the Oklahoma insurance commissioner:
In one case in the report, a man was switched to a Humana plan from traditional Medicare. As a result, he lost the extra benefits that he had under a Medicare supplement policy from Blue Cross and Blue Shield of Oklahoma, and he incurred additional costs when he became ill. The Oklahoma Insurance Department said: “The member had to borrow against his house to pay for these uninsured hospital and medical expenses. This was solely due to the failure of the agent to properly explain his existing coverage and the impact of purchasing a Medicare Advantage plan.”
How do we think about a story like this? Did the Humana subscriber just make a bad bet, and now has to face the consequences? Perhaps. But is this development really a triumph for cost containment? Doesn’t it just speed the man onto Medicaid? I worry that the new emphasis on multiple tiers and types of Medicare services is ultimately just a way of shifting costs to the consumers least able to understand fine print or advocate for their rights.
I’m pretty sensitive to stories like this because my mother turned 65 last year, and is perusing all manner of plans offered via or in conjunction with Medicare. She pores over fat packets of information, websites, and other materials for both doctor/hospital and drug coverage. She’s always amazed at what she calls “litte tricks” within each plan–for example, one trumpets “hearing aid coverage,” only to tell you in the fine print that the maximum it pays toward that cost is $100….a pretty trivial contribution to the cost. Another seems to think “dental care” merely amounts to cleanings. (By the way, good luck finding a dentist if you’re on Medicaid; in one recent case, “It took the combined efforts of one mother, one lawyer, one help-line supervisor and three health-care case management professionals for a single Medicaid-insured child.”)
For the healthy, an array of medical insurance options probably seems the best realization of consumer choice. But once you’re really sick, you want the best care you can afford. And since the chronically ill routinely consume the majority of health expenses, perhaps reform should focus on their perspective, rather than the joys of comparing endless private insurance contracts. If we continue going down this road, we may well need to set up satellite legal clinics in assisted living facilities. And this woman will be off to law school.
May 15, 2007 at 3:29 pm
Posted in: Health Law
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Improving Casebooks with Fiction
posted by Nate Oman
Not surprisingly, since my secured transactions professor was Elizabeth Warren, I learned Article 9 using Warren & Lopucki’s casebook. In retrospect there are things about the book that bother me. It’s hyper law-in-action approach at times made the doctrine quite a bit muddier than it needed to be, and I tend to think that the realist claim about the uselessness of legal doctrine is a fallacy. On the other hand, it did include Tom Wolfe’s foray into the drama of commercial lending in The Man in Full, a novel that, among other things, takes readers into a workout session between a well-secured bank and an imploding real estate developer. It makes me wonder about the use (or potential use) of passages from novels in casebooks.
As far as I know no one has done so yet but I think that Christopher Buckley’s novel Little Green Men merits a place in any self-respecting administrative law casebook. The book follows the downward spiral of an inside-the-beltway, Sunday morning talkshow host who is abducted by aliens and leaves the inner corridors of the Establishment to lead the unwashed masses of UFO believers in a march on Washington. The alien abductors, of course, turn out to be agents of a secret government bureaucracy called Magestic or MJ-12. The novel provides a brief institutional history of MJ-12, charting its rise from an innocent ploy to fool Stalin in the late 1940s into huge bureeaucracy pursuing a different mission. It is one of the better description of bureaucratic evolution I read:
Then, as with so many other government programs, the original plan gave way to bigger things. . . . They decided that as long as they were at it, MJ-12 could serve another, even higher purpose: keeping the taxpaying U.S. citizenry alarmed about the possibility of invasion from outer space, and therefore happy to fund expansion of the military-aerospace complex. A country convinced that little green men were hovering over the rooftops was inclined to vote yea for big weapons and space programs.
So what began a half century ago with the towing of some pie-shaped reflective disks behind a camouflaged aircraft over Washington State soon evolved into a “black” program with a yearly budget running into the tens of millions of dollars. But Americans are easily bored. The problem quickly became how do we keep them interested? After a while, mere sightings of flying saucers just weren’t enough. MJ-12 had to devise more elaborate entertainments: physical evidence, scorch marks in the grass, traumatized animals (easy enough), cars whose batteries had inexplicably gone dead while their occupants were staring google-eyed at the funny lights. When the thrill of disabled vehicles and freaked-out pets wore off, MJ-12 had no choice but to start providing glimpses of the alien darlings themselves. This was trickier. For one thing, it meant finding dwarfs with security clearances. For this reason, aliens have gotten considerably bigger over the years.
And so on. I wonder what other novels could be used (or are used) to illustrate legal issues and make casebooks even more fun and fascinating than they already are.
May 15, 2007 at 2:09 pm
Posted in: Law School (Teaching)
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Welcome to the Blogosphere. . .
posted by Frank Pasquale
Jacob Katz Cogan’s International Law Reporter. ILR should be a great guide to the ever-growing literature on international law. Jacob has served as assistant director of Yale Law School’s Global Constitutionalism Project and has held fellowships at the Carr Center for Human Rights Policy. I know many international law professors follow Opinio Juris and IntLawGrrls. . . if you want to point readers to other international law blog resources, please post on the comments below!
May 14, 2007 at 7:44 pm
Posted in: International & Comparative Law
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Deposition Music Video
posted by Dave Hoffman
We report, you decide. Is this video charming, disturbing, overly dorky or something else?
May 14, 2007 at 3:44 pm
Posted in: Weird
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The Right to Delete’s Infrastructure
posted by Frank Pasquale
Should every keystroke you ever enter into your computer be preserved for inspection forever? Worry over that possibility has led to some very interesting scholarship, including Paul Ohm on the right to delete. Ohm has suggested that a right to delete is akin to the property right to destroy what one owns, for “when an owner loses control of a copy of her data, she loses the ability to dispose of or alter that data.” By contrast, Ohm notes Orin Kerr ’s “worries that during the time after [data is captured] and before it is analyzed, the Fourth Amendment may not apply since the owner of the original drive has not been deprived of a possessory interest.”
I don’t know enough about the relevant Fourth Amendment law to comment on that dispute, but I do find Google’s recent commitment to deleting personally identifiable data from search history records (after about 2 years) to be an interesting development. Jack Balkin has noted various “infrastructural requirements” for the enjoyment of certain rights. He states:
[A]n infrastructure of free expression. . . . includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.
The right to delete appears to require commitment by search engines and other massive databases to allow some “cataloguee” discretion over what to retain and what to delete from records. The big question is whether the market will ultimately reward or punish search engines that put that infrastructure in place. As Elizabeth van Couvering has noted, current trends do not bode well for the development of public-minded search engines:
Resources in search engine development are overwhelmingly allocated on the basis of market factors or scientific/technological concerns. Fairness and representativeness, core elements of the journalists’ definition of quality media content, are not key determiners of search engine quality in the minds of search engine producers.
As with digital music, we may need Europe to lead the way. But perhaps there is one powerful constituency fully behind the right to delete:
From 2001 to 2004, the RNC’s highly unusual “document retention” policy was to intentionally destroy all e-mails that were more than 30 days old. In the summer of 2004, due to “unspecified legal inquiries,” the RNC changed its policy by allowing — but not mandating — the indefinite retention of e-mails sent and received by White House staffers on their RNC accounts.
Perhaps eventually technology to preserve data will become more transparent.
May 14, 2007 at 3:40 pm
Posted in: Criminal Procedure, Google & Search Engines, Intellectual Property, Technology
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The Economics of Law Reviews
posted by Dave Hoffman
I’ve suggested that part of the job of a student law review editor (especially an EIC) is to think strategically about increasing the use of her or his journal by the legal community. This might lead editors to recruit student authors to write doctrinal “mini-treatises” on a regular basis, or to aggressively promote articles to targeted lawyers and judges.
This reorientation of law reviews’ mission from pincites toward promotion has as yet failed to set the world on fire. A stumbling block is that law journals are structured inefficiently.
The economics of law reviews is obscure. Posner’s observation that “[t]o student editors, the cost of an author’s time is zero . . .” was all I could find, though I value my time positively, so I didn’t look very long. Because schools subsidize journals, we know that the supply of articles sold is “inflated,” but we don’t know exactly to what extent. Some law review editors are paid – but that practice is shrouded in mystery too. (The by-laws of reviews available on the web are silent on pay issues). Here is what we do know.
Law schools subsidize law reviews with money and faculty time for three basic reasons, [1] to create quality signals and avoid the market for lemons; [2] to improve the school’s academic reputation (to mixed effect, as Al Brophy has demonstrated); and [3] to compete for entering students. A great deal of this looks to me like me-tooism: schools pay for journals because other uses of money are harder to explain. I don’t think that any law school subsidizes its law review in the hopes that it will one day make money by selling advertising or subscriptions. [Update: I've been reminded (in the comments below) that many believe that law reviews provide good educational experiences for their members, which is another reason schools might subsidize publication.]
Though certain (wonderful and wise) students may seek to promote legal scholarship, I imagine that most law students serve as editors for very practical reasons. Signaling is the most important. Apart from the general quality signal, membership on certain reviews may create a proxy for specialization in a practice area in a way the Bar does not otherwise permit. (Thus, if I were want to hire a water lawyer, I might look to those who have served on a natural resources journal.) Students may also seek (in Posner’s words) “useful training” in editing and citation.
The resulting market is interesting.
May 14, 2007 at 1:54 pm
Posted in: Law School (Law Reviews)
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Wiki-failure
posted by Dave Hoffman
In July of 2006, I argued here that the law review submission process would be aided by a Wiki. The purpose of the page: to collect information on submissions, accepted articles, board preferences, and other useful tips.
So I started a place where folks could work together to create a public good: lawreviews.wikispaces.com
A reader who is “a bit of a wiki-cynic” reminded me of the project recently. The page seems to have withered on the vine. What happened folks? Is this project less socially useful than, say, a description of the cell nucleus, today’s featured Wikipedia article?
For what it is worth, Michael Froomkin’s Law Review Copyright Wiki, while significantly better than my page in every way, also has been relatively under-edited.
May 14, 2007 at 10:25 am
Posted in: Wiki
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Should We Get Rid of the Law School In-Class Essay Exam?
posted by Daniel Solove
I’ve long been unhappy with the typical law school exam format. The entire grade for the class is based on one 3-hour in-class essay exam. The problem with this format is that many students aren’t particularly adept at writing very quickly under immense time pressure. So the exam tests, in part, the ability to write quickly — a skill that is only of limited usefulness in the practice of law. In real life, lawyers don’t write briefs in 3-hour timed sessions. Law firms would be very unhappy if they did — first because the brief probably wouldn’t be that good and second because it would amount to a meager 3 billable hours!
Most law school classes still use the 3-hour in-class exam. Why?
Perhaps because many law school classes are quite large (80-120 students) and unlike other fields, law professors don’t have teaching assistants to help with the grading. With a large class, having students do more writing will make grading even more onerous. The 3-hour in-class exam keeps the amount of writing professors have to read to a manageable level. Most 3-hour exams amount to about 3000 to 4000 words, which amounts to about 10-14 pages double-spaced typewritten text. In a class of 100, that’s about 1000 to 1400 pages of reading! A greater dosage could send one into a coma. But this problem can be overcome — just give a take home exam with page limits.
Another reason for the in-class exam is to prevent cheating. Take home exams increase the opportunities for students to cheat. Although this is certainly a problem, I believe that we must at some point rely on students’ integrity and honesty. Trying to create airtight cheat-proof evaluation systems is not teaching students to be honest — it is simply delaying the problem. After graduating, students will have many opportunities to engage in dishonest conduct. Law schools may have less cheating to deal with, but when students without integrity enter the world of law practice where it is possible to act dishonestly, will they continue to abstain? Academic dishonesty is always a risk, but it is a risk we should confront. Better to address it in law school than afterwards, where lawyer dishonesty can cause tremendous losses to clients, investors, the public, etc.
I’m increasingly growing dissatisfied with the in-class exam, although I still use it. The reason I’ve done so is more my inertia about shaking up existing traditions than it is well-reasoned pedagogy. I’ve used take home exams in the past, which have worked well. This semester I tried an experiment with one of my classes. I had the students write a short paper (with strict page limits) due at the end of the semester on a topic of their choosing. I also had them answer an exam-style question (again with page limits) in a take home exam format. I thought that this system worked quite well and I’m inclined to use it again. I’m starting to wonder whether I should move away from giving in-class essay exams in all my classes.
So is there any other reason to continue to test students based on the 3-hour in-class exam? Does this format of examination really have a good pedagogical purpose? Is it a fair way of evaluating students? Please note that I am referring to an essay exam, as multiple choice questions would probably best work with the in-class format.
May 13, 2007 at 10:50 am
Posted in: Law School (Teaching)
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