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The Domestic Violence Preliminary Hearing

Like Cinderella's, my adventure ends at midnight when my temporary password vanishes in a shower of electrons. I thank all of the editors for the opportunity to guest-blog here. I want to offer a substantive post on a serious legal topic before I go. I've been spending some time in court lately; I tried a felony jury case with my students in October. I've been in the academy since 1994, so being in court on a regular basis is a novelty. I've seen many domestic violence cases now, and observed first-hand the truth of the conventional wisdom that some victim-witnesses do not wish to participate in a prosecution of their boyfriends or husbands. Prosecutors then face the unappealing alternatives of dropping the charges in a case involving a violent crime, or going forward by putting the victim of a crime under threat of prosecution or contempt.

Something occurred to me that would make these cases more prosecutable; it may well already be in the literature, I offer it more as a notion flowing from a war story than a proposal or fully-baked idea. Here it is: Why not take victim-witnesses directly from the scene of the arrest to a court reporter, with a magistrate present or available, put them under oath, and take their testimony while it is still fresh? Call it a domestic violence preliminary hearing. Then, if the victim recants, the prior testimony can be used at trial (or to induce a plea).

There are a number of objections, none of which seem insurmountable.

The obvious confrontation clause/due process problems can be resolved. WIthin a few hours, defense counsel would have to be appointed, given an opportunity to meet their client and review police reports and the victim's criminal record, and then of course to cross-examine. In the absence of some special need for additional time to prepare for cross, a few hours to prepare should be consistent with due process. The defendant could be present, in the custody of the arresting officers.

Another potential objection is that taking testimony while the victim is angry is a strategem to frustrate the will and intent of the victim when calm. This renders the notion objectionable, or not, depending one's answer to the classic question of whether domestic violence is a private matter between the people involved, or just another public criminal offense like robbery or murder where the interest in prosecution is held by the public. If the latter view is correct, as now-common mandatory arrest/no drop policies suggest, then evading the victim's presumed future intent is unobjectionable because prosecution is not the victim's call.

One of my brilliant students who worked in this area suggested that another potential problem is that some people in physical danger will hesitate to call the police if they will be unable to halt a future prosecution. If people in physical danger no longer use the police in emergencies, that would increase violence, and therefore be undesirable. Put another way, there is value in arresting someone to halt an immediate assault even if no criminal conviction results. A couple of days after my student made the point, I came up with this response: the objection assumes legally sophisticated victims. A sophisticated victim calling the police only because of her power to end the case later would know she could still stop the process later. Not showing up or recanting at trial might not work anymore, but refusing to talk at the domestic violence preliminary hearing would. So ultimately, a victim who would not go to the authorities if a prosecution will result still has control, and can still call 911.

I'd be interested in hearing whether people who know much more than I do about domestic violence think there is something worth thinking about here. Meanwhile, see you at the happy hour.

Posted by Jack_Chin at 08:48 PM | Comments (1) | TrackBack

Trust Law Meets Statutory Interpretation

For my final guest post, I want to talk about a case argued before the Supreme Court on Monday (November 26): LaRue v. DeWolff, Boberg, & Assoc. The case involves the appropriate interpretation of ERISA provisions governing individual pension plan participants’ right to sue the fiduciaries who administer their plans. While the subject might bore the average lawyer, as one who teaches courses both on statutory interpretation and on trusts, I find it intriguing. So, here goes: LaRue is a participant in an ERISA-covered Section 401(k) pension plan that is sponsored by his employer, DeWolff. DeWolff administers the plan and so qualifies as an ERISA fiduciary. Under the plan, participants may choose among several investment options and may direct DeWolff, as plan administrator, to invest the amounts allocated to their individual accounts in specified percentages. LaRue claims that DeWolff breached its fiduciary duties to him by failing to follow his investment allocation instructions, resulting in a loss of approximately $150,000.

Enter ERISA Sections 502(a)(2) & (a)(3), 29 U.S.C. 1132(a)(2) & (a)(3), under which LaRue seeks to have the plan reimbursed for that alleged $150,000 loss (after which the plan would allocate the funds to his individual account). ERISA Section 502(a)(2) authorizes a participant and others to sue a fiduciary (like DeWolff) to recover “losses to the plan” resulting from a breach of fiduciary duty. Section 502(a)(3) is a catch-all provision that authorizes a plan participant and others to sue for, among other things, “appropriate equitable relief . . . to redress” “any act or practice which violates” ERISA.

The issues thus become: (1) Does Section (a)(2) authorize a plan participant to sue for recovery that would inure to his individual account rather than to the benefit of the plan as a whole?; and (2) Does LaRue’s claim to recover the alleged $150,000 loss constitute a claim for equitable relief (as opposed to a legal claim for compensatory damages), as required under (a)(3)?

The Fourth Circuit answered both of these questions in the negative. LaRue, joined by the United States (whose views were solicited by the Supreme Court), argues that both of these questions should be answered in the affirmative, hanging his hat primarily on purpose-based arguments. The amicus brief filed by the United States likewise focuses primarily on purpose-based arguments: To wit, ERISA’s express statement that it is designed “to protect . . . participants . . . and their beneficiaries” by establishing standards of conduct for fiduciaries and “providing . . . appropriate remedies . . . and ready access to the Federal courts” to enforce those standards. (Emphasis added). Both LaRue and the United States emphasized this purpose during oral argument, maintaining that given its aim to empower plan participants to enforce their rights against plan fiduciaries, Congress could not have intended to deprive individual plan participants of the right to sue under Section 502(a)(2). Notably, although they did not speak in terms of statutory purpose, the Justices — particularly Justices Ginsburg, Souter, Breyer, and Stevens — seemed sympathetic to this idea that the statute must provide some remedy for individual investors whose instructions are ignored by a plan fiduciary.

But perhaps the most interesting aspect of this case to me is a canon, and an aspect of trust law, upon which no one seems to have focused enough attention. That canon is the reference, or extrinsic source, canon that authorizes courts to look to the common law of trusts to fill in gaps and give meaning to ambiguous ERISA provisions. The idea behind the common law reference canon is that Congress legislates against the backdrop of the common law and is presumed to incorporate accepted common law principles into the legislation it enacts, so that common law understandings are an acceptable extrinsic reference for courts to consult when construing statutes. This is particularly true where, as here, ERISA explicitly acknowledges that its fiduciary duties are derived from the common law of trusts. LaRue and the United States (and some amici) do invoke the common law of trusts to an extent — as part of their argument that the catch-all provision in Section 502(a)(3) permits claims of the kind LaRue is making. (They argue that if equitable relief would have been available at common law against a trustee who failed to follow a beneficiary’s investment instructions, then a 502(a)(3) "equitable" claim should be available here against an ERISA fiduciary who committed the same breach.)

But it seems to me that the parties are missing a broader common-law-based argument, one that supports LaRue’s right to sue under both Section 502(a)(3) and Section 502(a)(2): One of the foundational principles of the common law of trusts, at least in the modern era in which trustees are given wide discretion to manage trusts comprised mostly of financial instruments, is that the trust system would fall apart —i.e., that trustees would be free, at best, to slack off and, at worst, to steal from beneficiaries with impunity— unless an adequate mechanism existed through which beneficiaries could punish trustees for misconduct. Thus much of modern trust law is designed to ensure that beneficiaries have the ability to haul trustees into court and hold them personally liable if they violate their fiduciary duties. It is for this reason that trust law requires trustees to provide annual accountings to beneficiaries and that certain limits are placed on who can be named a trust beneficiary (pets, for example, cannot be valid beneficiaries because they cannot sue a trustee for fiduciary breach — though in some states, this rule can be bypassed by designating a human caretaker for the pet). In other words, LaRue’s purpose-based argument could be strengthened by not only referencing ERISA’s express purpose to protect plan participants, but also reminding the Court of trust law’s fundamental obsession with ensuring that beneficiaries have the power to haul trustees into court to redress fiduciary breaches (and of the common law notion that the very viability of the trust system depends on this after-the-fact power). In this light, construing ERISA to strip individual plan participants of the power to bring suit when the injury caused by the fiduciary affects only an individual account, rather than the plan as a whole, would run contrary to the common law backdrop against which Congress avowedly legislated when it enacted ERISA. (Note: Such a common-law-based argument, unlike statutory purpose arguments, would have had a greater likelihood of appealing to ardent textualists like Justice Scalia).

Not that LaRue is likely to lose without this additional common-law-based argument: My reading of the oral argument is that the Court will rule in his favor and interpret Section 502(a)(2) to allow individual plan participants to sue the plan fiduciary for breaches of the kind alleged (and then decline to reach the 502(a)(3) issue as "unripe" or "unnecessary"). It may even do so in a unanimous opinion. But I would have liked to see the argument made in those terms, and referenced at oral argument.

Posted by Anita_Krishnakumar at 07:24 PM | Comments (2) | TrackBack

Misappropriation of Religion

There have been almost 3000 news stories on the bizarre Teddy Bear affair in Sudan. The AP notes that "Sudan's Islamic government, which has long whipped up anti-Western. . . hard-line sentiment at home, was balancing between fueling outrage over the case of Gillian Gibbons and containing it." Given the diversity of implementations of Sharia law, the case appears to be yet another sad example of religion misappropriated to crass political ends. Law prof Haider Ala Hamoudi makes the following point:

[W]ould a medieval jurist know what a teddy bear even was? Does it matter at all to the conventional wisdom that the crime under Article 125 of the Sudanese criminal code is NOT blasphemy, it is "publicly cursing or insulting, any of the religions or their religious customs or its sacred matters . . . ?" Does anyone believe that medieval jurists actually cared about protecting the "religious customs and sacred matters" of religions other than Islam as this law at least purports to? Would medieval jurists of any religion have phrased anything so ecumenically? Does anyone at all reporting on the shari'a crime of blasphemy care in this absurd case about this actual law, under which this poor actual woman is being judged, instead of some academic construction of what is happening based on sources the Sudanese judges and lawyers aren't reading? . . . . [Given the] disinterest of respected religious scholars in supporting the Sudanese verdict, I tend to conclude nobody thinks the shari'a, as opposed to Sudanese politics, has very much to do with any of this.

In other news, in an upcoming conference on Christian legal theory, "Judge Michael McConnell will deliver an address with the provocative title 'Asking Muslims to be Moderate.'"

Posted by Frank_Pasquale at 07:16 PM | Comments (0) | TrackBack

Our 2,000,000th Visitor!

We just past our 2,000,000th visitor, a bare 11 odd months after our million-hit milestone. We also (relatively recently) quietly celebrated our second birthday as a blog.

We're all very grateful to have such an engaged and thoughtful readership, and we look forward to seeing some of you again in person at our upcoming happy hour.

Posted by hoffman at 04:01 PM | Comments (0) | TrackBack

Close Encounters with People Apt to Believe in Close Encounters

In my first post here as a guest blogger, I mentioned a New York Times op-ed that quite straightforwardly accepted the existence of ghosts. As my guest blogging stint draws to a close, I thought I'd relay my own "Close Encounter with People Apt to Believe in Close Encounters".

A few weeks ago, I saw a performance of sleight-of-hand and mentalism by Steve Cohen, "The Millionaire's Magician." Magicians fall on a spectrum from those like Uri Geller, who purport to have genuine psychic powers, to those like Penn & Teller, who make quite clear that they are performing illusions (and sometimes even reveal their methods). Cohen fell into the middle of this spectrum. Before moving into a mind-reading portion of the program, he would say something like, "Now, you've seen me do some sleight-of-hand. But what you will see next is very mysterious and powerful." As he acknowledges in his book, Cohen tries to create the illusion that he has mystical powers without actually saying so. Perhaps, it's classic magician misdirection. Perhaps, it's beneficent deception. Or, perhaps, it just pulls the wool over some people's eyes.

After the show, I was in an elevator with some other spectators. We all expressed agreement that it was a fine show and a very entertaining evening. One spectator seemed particularly impressed. I asked her if she thought that Cohen had real magic powers or was just creating the illusion that he did. She said she believed he had real magic powers. Zoinks! Now have I restored your confidence in the jury system?

Posted by Adam_Kolber at 11:51 AM | Comments (3) | TrackBack

Lifetime Limits in Health Care Finance

The WSJ has a superb article on the shadowy world of "lifetime limits" on health insurance policies. It focuses on a man (Dawson) who "maxed out his plan's $1.5 million lifetime cap halfway through his long hospital stay." The hospital and doctors aggressively moved to collect the rest:

CPMC discharged Mr. Dawson on July 26, and Mrs. Dawson drove her husband home. As they entered their house, Mr. Dawson lost his balance and fell. Mrs. Dawson was trying to help him up when the phone rang. It was Ms. Beronilla, the hospital's financial counselor. Mrs. Dawson says Ms. Beronilla . . . .told her the hospital would start billing immediately. With her husband still splayed out on the floor, Mrs. Dawson remembers replying: "Do what you have to do."

The story foregrounds the sad state of privatized American health care: we frequently force people at their most vulnerable to negotiate with implacable bureaucracies. But a harder question for advocates of universal coverage lurks in the background: what are the limits of collective responsibility? I doubt many would be argue for state coverage of Dawson if his bill reached $500 million. One or two million dollars is far more reasonable, but what should the limits be?

Here is one helpful perspective on the issue:

The Segal Company, an employee-benefits consulting firm, says the average health-plan cap among companies it advises is $1 million a person -- the same as it was in the 1970s, when the purchasing power of $1 million was the equivalent of nearly $6 million today.

The six million dollar figure has been used in cost-benefit analysis for regulations--that is, if a safety regulation will cost an industry six million dollars, and save one life, it can be deemed cost-effective. David Cutler has done good work on the "year-by-year" assessment of the value of life:

Cutler concluded that a 45-year-old American could expect to spend $30,000 over the course of his life on all forms of cardiac care and that, thanks to improvements in cardiac technology alone, he could expect to live three years longer. That worked out to $10,000 a year of added life. Cutler can rattle off figures to prove that Americans value life even more. (Air bags cost something like $100,000 per year of life saved, for instance.) But you don't need to be an economist to believe that $30,000 for three extra years is a pretty good deal.

Of course, if there were an easy way to reallocate spending from "end of life" to public health measures, some of the former spending might be avoided, as one expert on public health argues:

[I]n the past six years, no health official has argued forcefully for social changes that would genuinely improve the public's health on a significant scale. While we hear plenty about how personal "lifestyle" changes can make us healthier, health officials are not pushing for social fixes that would have even more powerful effects by limiting inequalities in wealth or their health-impairing correlates. They don't demand reforms of the sort that would make us more like those developed countries (Denmark, France, etc.) where infant-mortality rates are more than 20 percent lower than ours and where life expectancy is longer — changes like more affordable housing, a guaranteed minimum income, a higher minimum wage, restoration of workplace-safety oversights emasculated by big-business-friendly government, or better and cheaper public transportation systems.

Indeed, Dawson's story may well have reflected this situation. His staph infection appeared to be ignored for weeks, and "tort reform" makes it less likely that physicians and hospitals will have to worry about such misdiagnoses.

Nevertheless, even if these public health measures were adopted, and terrible cases like Dawson's were avoided, health care costs are going to come up at some time. As the tobacco industry's studies of the "cost-effectiveness" of smoking showed, from a cold-blooded accounting perspective, an early and quick case of cancer may end up costing far less than a protracted descent into Alzheimer's. Therefore, advocates of universal coverage are going to need to clearly contemplate the idea of a "lifetime limit." Though the Grover Norquists of the world will probably scream at the idea of having to spend millions of dollars to save a stranger, they might want to take a look at some leading economic work on the topic. As Hall and Jones note, "the optimal health share of spending seems likely to exceed 30 percent [of GDP] by the middle of the century."

PS: Here is some provocative commentary from Philip Alcabes on the futility of many "responsibility for health" programs:

Officials badger us to quit smoking, exercise more, eat more fruits and vegetables, avoid drugs, use condoms, reduce our stress. We are all simpletons, it seems, and need to be reminded to act in our own best interests. . . . Apparently it doesn't matter that, according to available evidence, most people who eat more fruits and vegetables to avoid dying of cancer would not have died of cancer anyway, or that the most likely cause of death for people who exercise more (heart disease or stroke) is the same as that for those who don't.

That many people are too poor to afford the time or the expense of eating whole foods, exercising regularly, or reducing their stress is not part of the magical equation, either. Indeed, the matter of who can afford healthful behavior might be exactly why the behavior-change crusade is so compelling: If you can afford to shop at a farmers' market, go to the gym, take a vacation, or live in a downtown apartment so you can walk to your office, then you are manifestly not a member of the unwholesome class. Your healthy behavior proves that you are a Worthy in the modern American moral register of health.

Posted by Frank_Pasquale at 11:48 AM | Comments (1) | TrackBack

Corporate Governance, the Rule of Law, and Glimpses of the Infinite

Non-sequitur alert. Try to figure what the next two segments have to do with each other. I will get back to you about it below the fold.

* * *

The other day I posted what at the time I thought was a grumpy comment to a post by Jennifer O'Hare of Villanova over at Conglomerate. The gist of her post was whether the failure of a corporation to have a "succession plan" for the CEO position could be laid at the doorstep of the board of directors in the form of liability for breach of fiduciary duty - I suppose either the duty of care or the duty of loyalty in the sense of the more recent Delaware decisions. The genesis for Professor O'Hare's post was a report in the Wall Street Journal that only 50% of public and private corporations had "succession plans." I remind my students from time to time that I'm an ex-corporate shill, and to take any view I profess with that in mind, so readers here are advised similarly.

* * *

I seem to have gotten fixated over the last few weeks on the words "Justice" and "Rule of Law." This all started back in July at the Law & Society Association annual meeting in Berlin, first at an "Author Meets Readers" session about Brian Tamanaha's Law as a Means to an End, and later at a roundtable on which I was honored to participate about the New Formalism. Larry Solum organized both sessions, so it's appropriate to hearken back to my paraphrase at the time of his words capsuling the issue: "We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism." Or to put it in the context of the sociology of Niklas Luhmann (about which there was a concurrent series of sessions going on): it's only within the legal system that the participants operate under the delusion there is Justice or Rule of Law. From the outside looking in, the paradox is obvious: we want to believe there is either a transcendent or immanent, but more importantly, objective right answer, even while we argue from subjective and instrumental positions. The only way the legal system works is with a kind of doublethink; believing in this dialectic that objective truth can somehow arise out of the clash of instrumental interests (to which, of course, Brian Tamanaha objected).

We are, like everyone else, in the faculty appointment job talk part of the year, and I have now heard the idea of Justice and Rule of Law discussed several times in different contexts. One set of job talks had to do with the idea of juvenile justice. Juvenile lawyers (and in our case, juvenile legal clinicians) have to deal with two competing concerns, the best interest of the child, and the obligation of zealous representation in delinquency trials. To put it more plainly, confession may be good for the soul, for healthy development, and for the making of good citizens, but it's bad for the juvenile defendant and his lawyer.

The idea surfaced again in a job talk about school desegregation, and the fact that Brown v. Board of Education (Brown I) was cited in support of three different positions in the recent Supreme Court case on school desegregation (i.e. colorblindness, integrationist, and a hybrid view). The candidate had an interesting thesis: that Brown has a colloquial or popular meaning apart from its technical legal holding. I like that idea, but it seems to me all it is saying is that Brown has become a shorthand reference for "Justice" or the "Rule of Law" in the context of racial equality. So it's no more surprising that everybody cites Brown than than everyone insists, in an instrumental way, that its view is the one consistent with justice or the Rule of Law.

* * *

Well, I have some street cred on the subject of corporate governance, and almost none on juvenile justice or school desegregation, but I am still fixated on these paradoxes in the ideas of Justice and the Rule of Law. So below the fold, I'm going to ramble a bit about corporate governance, the paradoxes of the Rule of Law, and glimpses of the Infinite.

I have a book in front of me by John D. Barrow, "professor of mathematical sciences at the University of Cambridge and a Fellow of the Royal Society," entitled "The Infinite Book." (I should note this book is worth reading if only for the following sentence fragment: "'make me one with everything' as the mystic said to the hamburger vendor".) There is a diagram pointing out a fairly obvious paradox of limits and asymptotes: you can make polygons with an infinite number of sides, but they merely approaching being a circle.

It seems to me we can make an infinite number of rules, but analogously, they merely approach being Justice or the Rule of Law. This is not, by the way, a distinction between rules, on one hand, and principles, on the other, because we can also make an infinite number of principles, and, again, they merely approach being Justice or the Rule of Law.

I wrote an article a while back that tried in a different way to get at the mystery of the way rules approach but do not reach the Unconditioned, a concept that exists even in secular philosophical reasoning. (Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise, in Law, Culture, and the Humanities, 3:82 (2007)). I wanted to pose the idea of rule as reification of something either transcendent or immanent, and the paradox or antinomy implicit in that. I had in mind the idea of "singularity" which is how the cosmologists refer to the state of the universe just before the Big Bang. At the point of the singularity, there are no contradictions, morally, physically, or metaphysically (the Kantian idea of God as well - no tension between virtue and happiness). But then things pop and immediately reify. Hence, you find religious traditions fighting the idea of reification into rules or rituals, and instead searching for the singularity. The big monotheistic religions do it, but badly, and schism over aspects of the reification. So instead we have Kabbalah, or the Tao, or Unitarianism.

The fact is that we sense the singularity (Charles Taylor in A Secular Age refers to it as "fullness") but can only allude to it in metaphor. Metaphor is related to analogy; analogy is related to form; form is the source of formalism.

If the Rule of Law and Justice are not the singularity (how could they be - they aren't singular!), then they are close relatives. Again, I am thinking like Kabbalahist: the ultimate singularity is almost inconceivable; its name in Hebrew is Ein Sof, or "there is no end" (which in English would be "infinite"). What emanates from the singularity are concepts that hover between namelessness and concreteness, like God or beauty or justice or mercy. I think the Rule of Law or Justice are such emanations, but I don't think they are the only ones. Justice and mercy, for example, are the classic antinomy. (Or as I said in a blog post title long ago "Being Right Isn't All It's Cracked Up to Be.")

I think of legal formalism as a kind of misplaced reification. Formalism is a reification of a value that emanates from the singularity. Formalism means there is a human created form to which an immanent value is assigned, but the form, as it must, falls short of the singularity. Hence, contract formalists find "the mutual intention of the parties" immanent in a writing; constitutional formalists find the original intention or original public meaning of the Constitution immanent in its words. In both cases, we want to be just, or observe the Rule of Law, but don't push the envelope much farther than that.

For some reason in law, the idea of the singularity has been co-opted by the critical scholars, starting with Robert Cover's iconic article, Nomos & Narrative, which I find fascinating. Cover's move from the paideic to the nomos is very much in the tradition of the Kabbalahistic move of Tzimtzum - in which the singularity withdraws from the universe leaving room for finite human institutions. The legal crits have pre-empted the category-analogy-metaphor arena by suggesting that all reification (hence all forms) is corrupt, and majoritarian views - including majoritarian views of scientific truths and moral universals - are a reflection of the corruption. Most legal scholars, I'd submit, are simply unwilling to, or incapable of, addressing the co-optation of the metaphysics on its own terms. I don't presume that the majoritarian view is bad; it's just the majoritarian view. I don't see as distinct a line between the cognitive issues in knowledge and the cognitive issues in "understanding" (through narrative) as the critical scholars characterize, because I perceive more mystery in the process of hypothesization than most legal scholars talk about. "Abductive reasoning" - the formation of a hypothesis by means of analogy or metaphor is the dark corner of the philosophy of science that the empiricists don't want to acknowledge.

Okay. Back to corporate governance. Here's a claim: the business judgment rule incorporates this glimpse of the infinite. What it is saying is that the law embodies the problem of apparently infinite systems, whether of polygon sides, number, rules or principles. We can always define one more rule or one more principle, just like we can always add one more side to the polygon, or one more number in the count. But we can't reach justice anymore than we can reach the circle or the last number. There's no possible finite set of legal algorithms that can address the complexity of managing an organization (just like there is no algorithm of leadership). I don't endorse the business judgment rule because I'm liberal or conservative or pro-management or pro-shareholder or progressive or reactionary, but because I have a sense (call it "fullness") that making a hard decision looking forward, whether it's about a company, or an investment, or disciplining my children, is a look into the abyss, the unknown, and going forward after the decision is stepping off a cliff. The consequence is that the legal system recognizes this glimpse of the infinite, and accords it all of the respect it deserves.

How then solve the problem of bad governance? Well, this post is too long already.

Posted by Jeffrey_Lipshaw at 11:34 AM | Comments (0) | TrackBack

Facebook Listens and Responds

I'm quite pleased to learn that Facebook has come to a privacy epiphany. I've been blogging a lot lately about the privacy problems with Facebook's new features -- Beacon and Social Ads:
* Facebook's Beacon: News Feeds All Over Again?
* The Facebook-Fandango Connection: Invasion of Privacy?
* Facebook and the Appropriation of Name or Likeness Tort
* The New Facebook Ads -- Starring You: Another Privacy Debacle?

Facebook recently announced that it is changing the way it obtains people's consent before it uses or discloses their personal information. In particular, its change in policy involves Beacon. According to the AP:

More than 40 different Web sites, including Fandango.com, Overstock.com and Blockbuster.com, had embedded Beacon in their pages to track transactions made by Facebook users.

Unless instructed otherwise, the participating sites alerted Facebook, which then notified a user's friends within the social network about items that had been bought or products that had been reviewed.

Facebook thought the marketing feeds would help its users keep their friends better informed about their interests while also serving as "trusted referrals" that would help drive more sales to the sites using the Beacon system.

But thousands of Facebook users viewed the Beacon referrals as a betrayal of trust. Critics blasted the advertising tool as an unwelcome nuisance with flimsy privacy protections that had already exasperated and embarrassed some users.

Some users have already complained about inadvertently finding out about gifts bought for them for Christmas and Hanukkah after Beacon shared information from Overstock.com. Other users say they were unnerved when they discovered their friends had found out what movies they were watching through purchases made on Fandango.

Peter Lattman of WSJ blog was one of the ones caught off guard by Beacon, when he discovered to his dismay that Facebook announced to his friends that he bought tickets to Bee Movie on Fandango.

According to the New York Times:

Under Beacon, when Facebook members purchase movie tickets on Fandango.com, for example, Facebook sends a notice about what movie they are seeing in the News Feed on all of their friends’ pages. If a user saves a recipe on Epicurious.com or rates travel venues on NYTimes.com, friends are also notified. There is an opt-out box that appears for a few seconds, but users complain that it is hard to find.

The New York Times story explains Facebook's change in policy:

Faced with its second mass protest by members in its short life span, Facebook, the enormously popular social networking Web site, is reining in some aspects of a controversial new advertising program.

Within the last 10 days, more than 50,000 Facebook members have signed a petition objecting to the new program, which sends messages to users’ friends about what they are buying on Web sites like Travelocity.com, TheKnot.com and Fandango. The members want to be able to opt out of the program completely with one click, but Facebook won’t let them.

Late yesterday the company made an important change, saying that it would not send messages about users’ Internet activities without getting explicit approval each time.

It appears that Facebook has moved from an opt-out to an opt-in system -- users will have to affirmatively give their consent before their data is disclosed. This is a very positive development.

Over at the New York Times's Bits blog, Louise Story has a very interesting post about the evolution of Facebook's Beacon and how Facebook has been continually improving the way it obtains user consent. At the end of her post, she notes that while Facebook has implemented an opt-in system for Beacon, it will not allow users to universally opt-out of Beacon:

Facebook executives tell reporters that users who ignore the alert boxes will no longer be considered to have said “yes,” even after two days. If users ignore the alert box, Facebook says it will not post the news of their purchases to their friends. This is a big change, if implemented correctly. Users will still be hassled by the alert boxes from Facebook on its partner sites, but ideally they can ignore them now and not worry about their purchases being shared.

Facebook executives say they do not want to add a universal opt-out button because then users would not be able to try out Beacon on different sites to see what it can offer. One Facebook executive predicts that consumers may “fall in love” with Beacon once they understand it. Only time will tell.

The opt-in is a big step in the right direction, but I do hope that Facebook will rethink its policy of not allowing users a universal opt-out.

Posted by Daniel Solove at 10:35 AM | Comments (0) | TrackBack

Responses: Plea bargaining

PENNumbra's featured November responses are now available at www.pennumbra.com.

This month, Frank O. Bowman, III, Michael M. O'Hear, and Daniel Richman each respond to Ronald F. Wright's article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005). In his article, Professor Wright addresses the challenges to the judicial system from the rise of plea bargaining rates in the United States. He argues that reform is best accomplished through a “mid-level” regulatory strategy—what he calls the “trial distortion theory”—that neither condemns nor endorses the plea bargaining process, but asks if pleas are distorting the pattern of outcomes that would result from a “healthy” system in which trials were the norm.

Professor Bowman, in his Response, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, picks up on one of Professor Wright's key findings: “the curious fact that the rate of acquittals in federal criminal cases has declined even faster than the rate of guilty pleas has increased.” Professor Bowman goes on to suggest that “acquittals may be vanishing in part because a once-common courtroom denizen—the true trial lawyer—is becoming an endangered species,” and worries that the system has created “ever-greater disincentives to trying the kind of cases in which acquittal is a live possibility.”

Professor O'Hear, in his response, What's Good About Trials?, questions whether trial distortion represents a significant problem. Professor O'Hear believes our main focus should be on “mak[ing] plea bargaining processes look more like trial processes.” According to Professor O'Hear, “The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”

Finally, Professor Richman, in his Response, Judging Untried Cases, applauds Professor Wright for attempting to determine whether “the inexorable reduction in trials actually reflects an impairment of the federal criminal system's truth-finding function.” However, he notes that Professor Wright overlooked one important factor in his analysis: the extent to which “the vanishing acquittal rate reflects an increase in the [federal] adoption of well-established ‘local’ cases.” Without more information, Professor Richman concludes, “aggregrate caseload statistics are . . . hard to interpret.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 09:54 AM | Comments (0) | TrackBack

Has Legal Scholarship's Lonely Genius Moment Passed?

Check out this magazine piece by Jacob Hale Russell of 02138. Russell pulls an old chestnut from the fire: professors at Harvard Law School are (gasp!) using research assistants to draft sections of articles. According to Russell, HLS "is particularly known for this practice, probably because lawyers are used to having paralegals and clerks who do significant research and writing."

Forgive me, but this is an unbearably silly argument. To the extent that HLS professors have practice experience, it isn’t at firms where paralegals do much (if any) substantive legal work. Plus, the hit job on Dershowitz is very undersourced.

But the real kicker is at the end, when Russell seems to argue that using RAs has reduced the aggregate quality of professors' work:

Harvard professors writing quietly and alone have penned some of the most significant books of the last century. At 538 pages of dense prose, John Rawls’ Theory of Justice, first published in 1971, could hardly have been designed to be a bestseller, but his concepts, like a “veil of ignorance,” have permeated modern politics and law. Michael Walzer’s Just and Unjust Wars, published in 1977, before he left Harvard for the Institute for Advanced Study, is now in its fourth edition and stands as one of the most significant ethical analyses of war. More such great and lasting books will surely emerge from Harvard. But will we really know for sure who wrote them?

Russell seems to imagine a past consisting of a brave cohort of lonely geniuses working in Langdell's stacks. Today, by contrast, professors are, at best queen bees in hives of workers slowly advancing the ball.

Does this feel like an accurate representation of the current state of the world to you folks?

(Image Source: Wikicommons)

Posted by hoffman at 11:21 PM | Comments (4) | TrackBack

Prawfs/Co-Op Law Blogger Happy Hour at AALS

I just wanted to announce that the annual AALS law blogger happy hour (that PrawfsBlawg and Concurring Opinions sponsor) will run 8:30 to 10:30 on Thursday, Jan. 3, at the fireplace room of the Library Bar at the Sheraton. Here are the details:

Thursday, Jan. 3, 2008, 8:30-10:30PM

Sheraton New York Hotel & Towers

811 7th Avenue (at 53rd Street)

212-581-1000

Fireplace Room within Library Bar

For all the night owls (or dilatory ducks) out there, I'm pretty sure festivities will continue in the Library Bar outside the fireplace room after 10:30. Should be a fun event!

As a resident of almost-but-not-quite-New-York, I'll also be doing a few posts in December on 1) transportation options in NYC and 2) good restaurants at various price levels. If anyone wants to suggest some restaurant ideas, feel free to comment below.

Photo Credit: Wallyg.

Posted by Frank_Pasquale at 08:58 PM | Comments (0) | TrackBack

Yoshida Battles the Pink Jellyfish

The WSJ has a great story on a jellyfish invasion in Japanese waters:

Fisherman Ryoichi Yoshida pulled in his nets before dawn one morning, hoping for lots of yellowtail and mackerel. But the fish were overwhelmed by a heaving mass of living pink slime. The creatures, called Nomura jellyfish, can measure six feet across and weigh up to about 450 pounds.

Fish poisoned by jellyfish tentacles die with their mouths agape. That mars their appearance and reduces their value by as much as 20%. "When their mouths are wide open, it means they've died going, 'I'm in pain! I'm in pain!' " explains Mr. Yoshida.

The jellyfish could lead to an international incident--either over Chinese industrialization, or global warming:

[A] computer model of ocean currents suggests the jellyfish are breeding off the Chinese coast near the mouth of the Yangtze River. One theory is that pollution, perhaps linked to industrialization in China, is helping create more algae in the sea. The algae are food for plankton, which is food for jellyfish. . . . [But the] dean of the Ocean University of China [says] "Floating jellyfish are mostly in the Sea of Japan....That's Japan and Korea's problem."

One fear among scientists is that the creatures are multiplying in a "jellyfish spiral." Shinichi Uye, a leading jellyfish researcher at Hiroshima University in western Japan, thinks overfishing off China has led to fewer plankton-eating fish, leaving more plankton for the jellyfish to suck up. This growing army of jellyfish then also eats fish eggs, resulting in even fewer fish.

If China is helping to generate giant pink jellyfish, it will be interesting to see if any international body can do anything to control the problem. On the other hand, the new popularity of "vanilla-and-jellyfish ice cream" shows that the industrious can turn even the most noxious pests into a blessing in disguise.

Photo Credit: Flaming Lips, Yoshimi Battles the Pink Robots.

Posted by Frank_Pasquale at 08:57 PM | Comments (2) | TrackBack

Models and Games

This seems like an auspicious occasion to announce that, following in the Larry Solum model of developing a paper from blog post to short idea piece to full-blown article, I've posted on SSRN the complete version of what was known in a prior iteration as "Aboutness, Thingness. . . ." The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these particular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.

The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn't tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn't make sense in the same way this answer does: "because I wanted his wallet full of money."

The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.

The article is Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists. The abstract follows the fold.

Here is the abstract:

There is value in thinking about constructs of rules as games on one hand, or models with on the other. Games are real in a way models are not. Games have “thingness” – an independent reality – and they can be played. Models have “aboutness” – they map onto something else that is real for the sake of simplification and explanation. But models and games are not dichotomous as the preceding claim makes them out to be. Sometimes models look just like games, and sometimes games can serve as models. Because models look like games, we may come to believe they are real – that the models have thingness rather than aboutness. People are prone to think some of the models they deal in all the time are real, like games, and perhaps even more real than the reality the models are supposed to represent. When that happens unreflectively in business, ethical and legal problems can ensue.

There is also a relationship between games and models as a way of thinking, and the position of the thinker as modeler, game creator, or game player. To engage in any of those acts is to use the legally trained mind to make sense of what is going on, and to act on it. But there are different ways of making sense, either by explaining or understanding, and it is not common in legal education to undertake the exercise of thinking about thinking, or theorizing about theory. I explore the consequence of confusing games and models in two contexts, financial accounting and contract interpretation, and consider the possibility of co-optation from models into games and vice versa. I conclude that practicing lawyers (or law professors) need to think about thinking itself or face the possibility of being misled by precisely the same context facing their clients. In short, lawyers need to be pragmatic ontologists.

Posted by Jeffrey_Lipshaw at 10:30 AM | Comments (0) | TrackBack

What Does It Take For a Judge to Jail 46 People in His Courtroom?

From CNN comes this bizarre story of a judge in Niagara Falls who had 46 people in his courtroom thrown into jail. Why? A cell phone rang and interrupted his court proceedings:

A judge in Niagara Falls, New York, has apologized for jailing nearly four dozen people over a ringing mobile phone in his courtroom, his attorney said Wednesday.

In removing City Court Judge Robert Restaino from office Tuesday, the state Commission on Judicial Conduct called his decision to lock up 46 people after no one claimed ownership of the phone "a gross deviation from the proper role of a judge." . . .

"We conclude that respondent's behavior ... warrants the sanction of removal, notwithstanding his previously unblemished record on the bench and the testimony as to his character and reputation," the panel ruled.

According to the commission report, Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.

About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. When no one admitted to owning the phone, Restaino heard the remaining cases and then recalled the cases of defendants who had already been released to question them about the phone, according to the commission report.

After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.

According to the report, Restaino decided to release defendants only after learning reporters were inquiring about their incarceration.

I guess inconsiderate cell phone man has met his match.

Posted by Daniel Solove at 12:08 AM | Comments (2) | TrackBack

Sharing Information for Anti-terrorism or for Domestic Crime?

The Associated Press reports that after 9/11 43 so-called fusion centers were established to improve information flow in part of an anti-terrorism strategy, but according to the Government Accounting Office only two centers, one in Kansas and one in Rhode Island, focus exclusively on antiterrorism. “Other centers focus on all crimes, including drugs and gangs GAO found [sic].” As the article details the centers operate via state police or other law enforcement agencies and often are in the same buildings as federal agencies.

Perhaps most odd is that each center is supposed to be independent and not controlled by the federal government but the Bush administration now has guidelines encouraging a more general sharing of information about criminal activity under the theory that terrorists need funding and will use criminal activities as sources of income. Of course the system raises privacy concerns and even if one thought that using information gathering and sharing techniques with some reduction in privacy was justified to fight terror, the system is now being used under the theory of preventing anything that could cause harm, an immature idea.

Ironically, the article also notes that information technology problems currently hinder the ability to have a Tom Clancy-style, perfect tech center. In addition, the bureaucracy sounds like an updated version of the Keystone cops as reports are often duplicated, staff is hard to find and train, and clearances take time to process and are often not honored by federal agencies. Nonetheless, it is probably better to assume that these glitches will be reduced if not essentially eliminated and that the larger privacy issues will increase in their impact and importance as the systems become more efficient. Put differently, is there a reason to fully realize the Digital Person? For it seems that although better systems to fight crime could be a good thing in the abstract, when the threat is not a more fully realized version of an attack on our society, the sacrifice in terms of freedom is massive. One book to read on an era with similar issues is Secrecy: The American Experience by Daniel Moynihan. Its reflection on Cold War policies in the face of real threats and how the policies made little sense offer an analog to some the issues faced today in the terror context.

Posted by Deven_Desai at 10:15 PM | Comments (0) | TrackBack

Accommodating Breastfeeding Mothers

Before my guest visit at Concurring Opinions ends, I want to comment on a case that received media attention in September and October: Currier v. National Board of Medical Examiners. The Massachusetts appeals court granted a preliminary injunction ordering the National Board of Medical Examiners (NBME) to allow Sophie Currier additional break time so that she could pump breast milk during a medical licensing exam. The Supreme Judicial Court denied the NBME’s request for further judicial review. This was undoubtedly a victory for Currier, but what about for other breastfeeding mothers?

Over at slate.com, Dahlia Lithwick asked why more female columnists did not comment on Currier. She speculated that women are so beaten down by the Mommy Wars that they chose to remind quiet; or that some women silently wondered why a mother of two small children would start a medical residency; or that many women believed that because they breastfed and worked without accommodation, Currier should as well. I’ve found it difficult to discuss Currier, but not for any of the reasons that Lithwick suggested. I usually applaud policies and legal results that help women balance families and careers . But here I’m concerned that Currier’s legal victory will ultimately undermine the goal of widespread accommodation of breastfeeding employees.

Here are the facts, which lacked clarity in many media reports. Currier was scheduled to take a 370-question multiple choice test. The test is taken on a computer and questions are distributed in eight one-hour blocks; once the block ends, a student cannot revisit that portion of the test. Students have forty-five minutes of break time; they can allocate it between the blocks in any manner they choose. No food or drink is allowed in the testing room. Because Currier has learning disabilities, the NBME granted her double time and a separate test-taking room. Currier’s testing would thus take place over two days, with forty-five minutes of break time each day.

Currier, whose daughter was born on May 1, 2007, asked for an additional sixty minutes of break time each day for the purpose of pumping millk. The NBME refused this request and offered the following accommodations:

* permission to express milk in a private room at the testing center during the allotted break time;

* permission to bring food and drink into the testing room;

* permission to pump milk while in her separate testing room;

* the option to leave the test center to breastfeed during the allotted time.

The first two accommodations are worthwhile because they go to the heart of Currier’s problem; that is, they help ensure that Currier will have adequate time to pump, eat, and go to the bathroom during the course of the day. The second two are notable only for their utter worthlessness. Leaving the testing center would only increase Currier’s time crunch. Her separate testing room is video-monitored and has at least three glass walls, so enough said about the suggestion that she pump there! The NBME’s other proposed solution—that Currier delay testing until she no longer needs to pump milk—suggests that the licensing board is several decades behind the times.

But why weren’t the first two accommodations good enough? At the risk of sounding like Donald Rumsfield standing at his desk, what’s the big deal?

Currier said that she should pump at least once every three hours in order to avoid reduced milk supply, engorgement, blocked milk ducts, breast infection, and other horribles. Her expert’s affidavit stated that each pumping session would take about thirty minutes: five minutes to assemble the pump, 10 – 15 minutes to express milk, and five to 10 minutes to disassemble and clean the pump and to store the milk. On this record, Currier does need more than 45 minutes of break time over the course of an eight hour test.

But of course this record strains credulity for anyone familiar with pumping milk. When time matters, women preassemble most of the pump in advance and bring extra preassembled parts if they will pump more than once. “Storing” milk consists of placing it next to an ice pack already in the pump. All the mechanics take just a few minutes.

The number that really matters is how long it takes to express milk. But at 10 to 15 minutes (the numbers provided by Currier's expert), she should have time to pump twice and still attend to other physiological needs, particularly since she can eat and drink in the testing room. And if she did have to pump less than the ideal, the most likely worst case scenario is that Currier would be a bit uncomfortable by the end of the day. Indeed, Currier’s victory is partially the fault of the NBME’s lawyers, as the appeals court specifically notes that on the state of the record, it was undisputed that Currier “would suffer physical pain from breast engorgement if she is not permitted additional time.”

What concerns me is that this case sends the message that accommodating breastfeeding mothers is difficult. It’s not. All women need is privacy to pump and the break time that many employees are already afforded during the course of an average day. But employers will understandably protest policies requiring accommodation if they believe that breastfeeding employees require one additional hour on top of what they usually receive.

While Lithwick is right that many commentators remained silent about this case, my own (admittedly unscientific) survey showed quite a bit of web chatter. Most comments were decidedly unsympathetic toward Currier. Indeed, I’ve declined to link to any posting beside Lithwick’s because some of the comments are so impolite. Undoubtedly some of the chatter has been influenced by the facts that Currier was already receiving accommodation for learning disabilities, and that she had failed the exam once before.

As academics have painstakingly documented, there is much that policymakers could do to help women balance families and careers. My fear is that Currier will end up as a poster child for those who oppose these efforts.

Posted by Sarah_Waldeck at 03:49 PM | Comments (1) | TrackBack

Concurring Opinions Makes the ABA Journal's Top 100 Law Blog List

I'm very pleased that Concurring Opinions has been selected for the ABA Journal's Blawg 100. According to the ABA Journal's site, it is listing "the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal."

The ABA Journal is also asking readers to vote for their favorites on their list, and we'd be delighted if you voted for us. Click the graphic below to go to the voting page.

Posted by Daniel Solove at 12:40 PM | Comments (0) | TrackBack

Just How Independent? Blogs, Judges, and Courtroom Behavior

When one encounters the local, local rules, the ones that a judge may put in place just for her court, or watches the withering comments a counsel receives or worse yet suffers under such reprimands, the image of judges as irrational or dictatorial law makers seems correct. Unfortunately that image probably undercuts the deference judges deserve if not the respect the bench requires. A New York case and a Florida-based blog present some light on the topic. The New York Law Journal reports that a city judge went into a two hour tirade to find one person whose cell phone went off in his court and then took 46, yes 46, people into custody. The Commission on Judicial Conduct has recommended the judge’s removal from the bench. “‘In causing 46 individuals to be deprived of their liberty out of pique and frustration, respondent abandoned his role as a reasonable, fair jurist and instead became a petty tyrant, abusing his judicial power and placing himself above the law he was shown to administer’.” The judge in the case attributed his behavior to stress in his personal life, but only one commissioner thought the argument merited a sanction less than removal.

In Flordia the chief judge of the Broward County circuit court has stepped down in part because JAA Blog has documented the bad behaviors of judges under his supervision including “a judge arrested for smoking pot in a park, another judge making an off-color sexual remark and another judge allegedly taking a loan from a defense lawyer appearing before him.” The National Law Journal reports that several blogs in South Florida document the in courtroom and out of courtroom deeds of judges. Some argue that the blogs provide a spotlight on how the courts work and have effected change. Others note that some of the blogs allow anonymous posts “about judges routinely not showing up for work, judges and lawyers having affairs with each other and other salacious rumors.” Regardless, it appears that attorneys and judges are reading the blogs.

All of this attention on judges and courtrooms reminds me of the opening to Tarzan Lord of the Jungle the animated series by Filmation (click here for the audio file). It was a long intro but the key was “This is my domain, and I protect those who come here; for I am Tarzan, Lord of the Jungle.” A judge’s independence is supposed to be part of protecting everyone who enters the court. The examples above show that judges are after all human, but we expect them to be a little better than the average person. The blogs offer more information about acts in which judges should not engage and that could improve the bench. Yet, society’s willingness to gossip and smear almost anyone could easily further politicize the bench and interfere with the independence judges require to protect all who enter a court. At a more abstract level the trend in having more information about judges online raises privacy and autonomy concerns. Several people including Dan and his recent work The Future of Reputation examine this idea. An excellent article about the need for privacy and its relationship to autonomy is Julie Cohen’s Examined Lives: Informational Privacy and the Subject as Object which appeared in the Stanford Law Review.

[Ed. note previously I had thought the voice over for Tarzan was from the Ron Ely version of the show. A comment noted that this recollection was incorrect. The text now reflects the proper source of the memory].

Posted by Deven_Desai at 12:31 PM | Comments (2) | TrackBack

Parody of Poetry of the Law

Thanks so much to Dan Solove, Frank Pasquale, and the rest of the distinguished group for allowing me to sully the Concurring Opinions cyberspace.

I was all set to introduce myself with something really serious (the posting on SSRN of a new piece) when I saw Nate Oman's post on the poetry of law. I am always humbled by Nate's thoughts on just about anything, because he is a scholar in ways I will never be. I thought not of great poetry (but if I had it would have been Robert Burns' great piece on lawyers, To A Louse*), but of parody, including Jeremy Telman's regular limerick fare over at Contract Law Prof Blog. Two weeks ago, NPR's Morning Edition did a story on BU law prof Mark Pettit, the "singing prof," who puts contracts cases to the tune of popular songs. Not to be outdone, I spent most of that day writing a musical (and I'd like to think, poetic) version of Pinter v. Dahl, the securities regulation chestnut we just happened to be studying. For all of the non-securities lawyers out there, this is the case in which the Supreme Court stretched to the limit the use of the English language in finding a party other than the issuer to be liable under Section 12(a)(1) of the Securities Act of 1933. And, despite the fact that (to steal a line from the Tappert Brothers, Click and Clack, of Car Talk, also on NPR) man-eating sharks lose their appetite when they hear me sing, I sang it to my class.

So without further ado, and to the tune of the theme from The Beverly Hillbillies:

Come and listen to my story bout that guy Maurice,
California boy just a-waitin’ to be fleeced.
Then one day put some money in with Bill
Out in Oklahoma where the wildcatters drill.
Oil, that is, black gold. Texas tea.
Well, the next thing you know Maurice is on the dole,
Askin’ lots of friends he knows to throw cash down the hole
Said Beej Pinter is the guy you wanna see
And they each put some money in without an SEC
Filing, that is. Form S-1.

Well, now it’s time to figure out if anyone can claim
That someone not the issuer can bear part of the blame
For selling shares unregistered with no gratuity,
To share a heapin’ helpin’ of some liability.

Section 12(a)(1) that is. 33 Act. Write a check.

Y’all invest now, hear?

The question is how many times the act got recorded on cell phones.

* "O wad some Power the giftie gie us
To see oursels as ithers see us!"

Posted by Jeffrey_Lipshaw at 10:59 AM | Comments (2) | TrackBack

Pain Assessment and the Law

Nature News reports on a study that found a correlation between certain brain wave measurements and pain intensity. The not-yet-published study will add to a growing body of neuroscience research that correlates the experience of physical pain with objective findings in brain images and other diagnostic media. This particular study was highly invasive, but a great deal of research involves non-invasive brain imaging. For example, a group of German researchers have reported finding tiny structural changes in the brain associated with chronic back pain using a technology called diffusion tensor imaging.

New pain assessment tools have tremendous potential to improve court and administrative proceedings that relate to personal injury and disability. Right now, juries are frequently called upon to assess damages for pain, even though many people exaggerate symptoms; some claims are entirely malingered. On the other hand, people can also have quite genuine claims for which they have little objective proof. And people with certain mental or motor difficulties may be incapable of telling us about the pain from which they nevertheless suffer. Juries and administrative law judges sometimes have little more to go on than hocus pocus. While we're a long way from having technologies ready for the courtroom, it's only a matter of time before courts are confronted with new neurotechnologies purporting to demonstrate the presence, absence, or intensity of pain symptoms.

I discuss these issues in more detail here and will present on these and other issues tomorrow at the University of Pennsylvania's Neuroethics Talk Series.

Posted by Adam_Kolber at 07:43 AM | Comments (0) | TrackBack

Introducing Guest Blogger Jeffrey Lipshaw

I'm very pleased to announce that Professor Jeffrey Lipshaw will be joining us as a guest blogger for the next month.

Jeff is an Associate Professor at Suffolk University Law School in Boston, where he teaches courses in the business and financial services concentration. He practiced for twenty-six years before entering legal academia, as an associate and partner in a large Detroit-based law firm, as the general counsel of the automotive division of AlliedSignal, and as the senior vice president and general counsel of Great Lakes Chemical Corporation. His advice to others seeking to breach the citadel walls of academia late in a legal career are capsuled in Memo to Lawyers: How Not to Retire and Teach, an article that prompted the dean of a "top five" law school to send an e-mail stating how much he enjoyed it, but also hoping that Jeff was also doing "serious work."

Jeff is a co-editor of Legal Profession Blog. He claims to operate "at the intersection of venture capital and Kantian philosophy." His recent publications include:

* Freedom, Compulsion, Compliance, and Mystery: Reflections on the Duty Not to Enforce a Promise, 3 Law, Culture and the Humanities 82 (2007)
* Law as Rationalization: Getting Beyond Reason to Business Ethics, 37 U. Tol. L. Rev. 959 (2006)

Posted by Daniel Solove at 12:41 AM | Comments (3) | TrackBack